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HEARING 

SENATE RULES COMMITTEE 

STATE OF CALIFORNIA 




STATE CAPITOL 

ROOM 113 

SACRAMENTO, CALIFORNIA 

WEDNESDAY, APRIL 8, 1992 
3:50 P.M. 



)E 

,92 



195-R 



SENATE RULES COMMITTEE 
STATE OF CALIFORNIA 



HEARING 



STATE CAPITOL 
ROOM 113 
SACRAMENTO, CALIFORNIA 



WEDNESDAY, APRIL 8, 1992 
3:50 P.M. 



Reported by: 



Evelyn J. Mizak 
Shorthand Reporter 



6 4 7594 SFPL: ECONO JRS 
171 SFPL 09/28/01 21 



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APPEARANCES 

MEMBERS PRESENT 

SENATOR DAVID ROBERTI, Chairman 

5 SENATOR WILLIAM CRAVEN, Vice Chairman 

SENATOR ROBERT BEVERLY 

SENATOR NICHOLAS PETRIS 

SENATOR HENRY MELLO 

STAFF PRESENT 

CLIFF BERG, Executive Officer 

PAT WEBB, Committee Secretary 

RICK ROLLENS, Consultant on Bill Referrals 

NANCY MICHEL, Consultant on Governor's Appointments 

ALSO PRESENT 



RUSSELL S. GOULD, Secretary 
Health and Welfare Agency 



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EVE KROTNGER, Counsel 
Legislative Counsel's Office 

LISA BRANDT, Chief Counsel 
Department of Health Services 

CAROLYN OWEN, President 
Northern California Chapter 
Health Physics Society 

DONNA EARLEY, Director 

Radiation and Environmental Safety 

Cedars Sinai Medical Center 

ROBERT J. LULL, M.D., Chief 
Nuclear Medicine 
San Francisco General Hospital 
California Medical Association 



ED COOK, Vice President 
Operations 
2i Gen-Probe, Incorporated 



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111 
APPEARANCES (CONTINUED) 



LYNN WALLIS, Manager and Consultant 
Media and Environmental Information Programs 
3 Health Physics and Nuclear Safety- 
General Electric 

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ERIC LAPALLA, Senior Vice President 

5 Harding Lawson Associates 

6 RONALD GAYNOR, Senior Vice President 
U.S. Ecology, Inc 

ALAN PASTERNAK, Technical Director 

8 CAL RAD Forum 

9 DANA GLUCKSTEIN, President 
Americans for a Safe Future 

DAN HIRSCH, President 
Committee to Bridge the Gap 

ROBERT CORNOG, Ph.D 
Committee to Bridge the Gap 

INGRID AZVEDO, Member 

14 Unemployment Insurance Appeals Board 

15 MANUEL GUADERRAMA, Member 
Board of Prison Terms 

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IV 

INDEX 

Page 
Proceedings 1 

{ Governor ' s Appointees ; 

RUSSELL S. GOULD, Secretary 

Health and Welfare Agency 1 

Questions by CHAIRMAN ROBERTI re: 

Legislative Counsel's Opinion on 

Necessity for Adjudicatory Hearing on 

Ward Valley Project 1 

Suggestion of Opinion from Attorney 

General 2 

Questions by SENATOR MELLO of EVE KROTINGER, 
Deputy Legislative Counsel re: 

Requirement for Adjudicatory Hearing 3 

State Hearing Procedure vs . NRC Procedure 4 

Questions by SENATOR MELLO re: 

Willingness to Follow State's Procedure 

for Adjudicatory Hearing 4 

Elongation of Process 5 

Possibility of Lawsuits if Hearing Is 

Denied 6 

NRC Approval of Nuclear Power Plants 7 

Leg. Counsel's Opinion Clear on Need for 
Adjudicatory Hearing 8 

Intent to Follow Law 8 

Difference of Opinion between Counsels 8 

Request for Copies of DHS ' s Counsel Opinion 9 

Intent to Vote against Confirmation if 

Adjudicatory Hearing Is Denied 9 

Statements by SENATOR PETRI S re: 



Fear of Facing Full-blown Hearing 10 

Possibility of Court Challenge if Hearing 

Is Denied 11 

Alternative Types of Hearing that 

Would Satisfy Requirements 12 

Lack of Clear Process in Mind 13 

Need for Open Exchange of Information, 

Record and a Finding 14 

Dislike for Hearing Procedure to Be Labeled 

Abuse 14 

Exposure to Same Delay and Legal Attack 

Problems 15 

Suggestion of Advice from Attorney 

General 16 

Questions by CHAIRMAN ROBERTI re: 

Attorney General ' s Amicus Curiae Brief 

in U.S. Supreme Court 16 

Take Title Provision 17 

Willingness for Hearing Process before 
Administrative Law Judge 17 

Question of Appropriate Legal Process 17 

Questions by SENATOR PETRIS re: 

Length of Time of License Moratorium 17 

Authority to Impose Moratorium 18 

Liability Issue of Take Title Provision 18 

Questions by CHAIRMAN ROBERTI re: 

Process in Attorney General's Office 

for Opinions 19 

Response by LISA BRANDT, Chief Counsel, 
Department of Health Services 19 



Nonpolitical Process 



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Statements by SENATOR PETRIS re: 

No Need for Second Opinion from Attorney 

General 21 

Response by MS. BRANDT 21 

Experience in Administrative Law 21 

Flaw in Leg. Counsel's Opinion 22 

Applicability of Federal Statutes 22 

Liability of Federal Government 23 

Ownership of Property 23 

View of State Lands Commission 24 

Request for Written Opinion from DHS 

Counsel 24 

Verbal Legal Advice Only 25 

Federal Ownership Requiring Federal 

Statutes 25 

Bureau of Land Management's Position 

regarding Ownership of Land 25 

Statements by SENATOR MELLO re: 

High Regard for Leg. Counsel's Staff and 

Opinions 28 

Political Actions of Attorney General 28 

Open up Dialogue on Issues 29 

Lack of Willingness to Share DHS ' s Opinion 

on Hearing 30 

Willingness of Department to Have 

Adjudicatory Hearing 30 

Structure of Hearing 30 

Response by MS. BRANDT re: 

No Such Thing as Adjudicatory 

Hearing as a Concept 31 



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Various Types of Hearings 

Request for Hearing that Includes: Disclosure 
of File Information; Cross Examination of 
Witnesses; Final Decision on Evidence 

Limited Participation 

Leg. Counsel's Opinion Would 
Preclude Limited Participation 

Intent of Legislature 

What is Department Afraid of 

Resolution of Technical Issues Difficult 
by Cross Examination 

Hearings on Diablo Canyon Nuclear Power Plant 

Dumping off Farallon Islands 

Response by MR. GOULD re: 

Commitment of Governor 

Witnesses in Support: 

CAROLYN OWEN, President 
Northern California Chapter 
Health Physics Society 

Endorsement of Ward Valley Site 

Halting of Research if Site Not Licensed 

Questions by CHAIRMAN ROBERTI re: 

Halting of Research 

Volume of Waste Generated 

Lack of Space for On-site Storage 

Divorce Ward Valley Issue from Confirmation 

DONNA EARLEY, Director 

Radiation and Environmental Safety 

Cedars Sinai Medical Center 



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2 Hearing Will Delay Opening of Site 

beyond Storage Capabilities 40 

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Researchers Put on Notice to Halt 41 

Questions by SENATOR PETRIS re: 

Knowledge of Site at Ward Valley 41 

Duration of Site Consideration 42 

Willingness to Testify under Oath 42 

Various Types of Hearings 43 

Current Storage Facilities on Site 44 

Questions by CHAIRMAN ROBERTI re: 

Options for Storage if Site not Licensed 44 

Questions by CHAIRMAN ROBERTI of MR. GOULD re: 

Reason for Objection to Cross Examination 

of Witnesses 45 

ROBERT LULL, M.D., Chief 

Nuclear Medicine 

San Francisco General Hospital 

California Medical Association 46 

Support for Confirmation without Adjudicatory 
Hearings 46 

Need for Radioisotopes in Molecular 

Biology and Bio-medical research 47 

Statement of Director of New AIDS Research 

Center in San Francisco on Halting of 

Research without Storage Facility 48 

Need for Waste Disposal in Nuclear Medicine 49 

Patient Care Will Suffer without Disposal 

Site 50 

Volume of Waste Generated Last Year 50 

Six Months of Storage Capacity 50 

Consequences of Delay for Adjudicatory 

Hearings on Ward Valley 51 



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Motives of Opponents 52 

Questions by SENATOR MELLO re: 

Possibility of Court-enforced Delays 

without Adjudicatory Hearing 52 

No Evidence that Protesters are Trying 

to Shut Down Nuclear Power Plants 53 

No Plans at Present to Build New 

Nuclear Plants 54 

Questions by SENATOR PETRIS re: 

Influence of Groups to Expedite 

Siting Process 55 

Communication of Urgency in 

Letters to Governor 56 

Support for Adequate Hearings 57 

Testimony at Hearings 57 

Further Delay Will Hurt People 59 

Familiarity with Ward Valley Site 59 

Questions by SENATOR MELLO re: 

Denial of Access to Existing Sites 60 

Affect on Programs, Research and 

Patient Care 61 

Questions by SENATOR PETRIS re: 

Familiarity with Applicant, U.S. Ecology 61 

Track Record in Other States 61 

Ownership of Two of Three Existing Sites 62 

Use of Liners 62 

Delaying Tactic vs. Scientific Need 63 



ED COOK, Vice President 

Operations 

Gen-Probe, Incorporated 63 

Development, Manufacture, and Marketing 

of Genetic-based Diagnostic Test Kits 6 3 

Utilization of Radioisotopes 64 

Urge Confirmation without Link to Ward Valley 65 

LYNN R. WALLIS, Manager 

Media and Environmental Information Programs 

General Electric 66 

State Review of All Issues on Ward Valley 66 

Federal Mandate to Open Site on 01/01/93 66 

Termination of Programs only Option if 

No Site Exists 67 

Cobalt-60 Gamma Knife 67 

State's Economy at Risk if Site Delayed 67 

Urge Confirmation 68 

Questions by SENATOR PETRIS re: 

Lack of Response as to Why Adjudicatory 

Hearings Were not Held Before 68 

Production Time for Gamma Knife 69 

Location of Manufacturing Facility 70 

ERIC LAPALLA, Senior Vice President 

Harding Lawson Associates 70 

Credentials as Hydrogeologist 70 

Involvement with Ward Valley site 71 

Definition of Ideal Site 71 

Moisture Movement at Site 73 

Infiltration Test 74 

Occurrence of Recharge 75 



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Questions by SENATOR PETRIS re: 

Distance to Water Table 75 

Source of Samples 75 

Occurence of Tritium at Site 76 

Diffusion 77 

Correctness of Models Used in Evaluating 
Protectiveness of Site 78 

Discharge of Groundwater to Colorado River 79 

Urge Confirmation Independent of Ward Valley 80 

RONALD GAYNOR, Senior Vice President 

U.S. Ecology, Inc. 80 

Holding Confirmation Hostage is Travesty 81 

DHS ' s Conservative Approach to Siting 81 

Public Involvement 81 

Extension of Public Comment Periods 82 

Project Focus of Misinformation Campaign 82 

Operator is Legal Custodian of Waste 82 

Producers of Long-lived Radioactive Waste 83 

Inability to Dispose of Waste if Site not 

Available by 01/01/93 83 

Over 500 Sites Will Be Located in 

California's Urban Areas 84 

22 Lawsuits Inevitable 84 

23 Storage of Radioactive Wastes in Hundreds 

of Urban Locations 84 

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Urge Confirmation 85 



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ALAN PASTERNAK, Ph.D., Technical Director 

CAL RAD Forum 85 

Liability Issue 86 

Responsibilities of Operator and 

Disposers under CERCLA Regulations 87 



DHS Unauthorized to Hold Adjudicatory 

Hearing 88 

Department's Handling of Technical 

Issues in Prior Hearings 89 

Vast Number of Public Hearings 89 

Composition of Citizen's Advisory 

Committee 90 

Extension of Public Comment Period on 

Final EIR 90 

Court Findings on Question of Adjudicatory 

Hearings on Licensure 91 

Constitutionality Issue before Supreme Court 92 

California Host State under Southwestern 

Compact 93 

Questions by CHAIRMAN ROBERTI re: 

Question of Constitutionality of 

Statute 94 

Focus of Attack on Take Title 

Provision Only 95 

Potential Liability of California if 

Safe Disposal Capability not Available 95 

Urge Confirmation 95 

Statements by SENATOR MELLO re: 

Action of Supreme Court as Reported 

in New York Times 96 

Possibilities if Federal Law Overturned 97 



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Statements by SENATOR MELLO re: 

Request for Short Time for Opponents ' 

Testimony 98 

Discussion 99 

Witnesses in Opposition; 

DANA GLUCKSTEIN, President 

Americans for a Safe Future 99 

DAN HIRSCH, President 

Committee to Bridge the Gap 99 

U.S. Geological Survey Report that 

Aquifer Drains into Colorado River 100 

Tritium Migration Issue 100 

Repeated Requests for Adjudicatory Hearing 

in Past Years 100 

Potential Alternatives if Department Allowed 

to Go Forward without Hearing 101 

Proposed Nuclear Reactor in Malibu 101 

Diablo Canyon 101 

California Farther Ahead than All Other 

States in Siting Facility 102 

Need to Safeguard Future Generations 103 

Questions by CHAIRMAN ROBERTI to MR. GOULD re: 

Department's Willingness to Hold Adjudicatory 
Hearing with Limited Parties 103 

Need to Control Timing of Process 103 

Need to Limit Number of Participants 103 

Consolidation of Witnesses 104 

Response by MR. HIRSCH 104 

Suggestion that Department and Site Opponents 

Work Out Type of Adjudicatory Process 104 



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Questions by SENATOR PETRIS of MR. HIRSCH re: 

Availability of Medical Expert to Answer 

Health Issues 105 

Medical Wastes vs. Power Plant Wastes 106 

Main Concern of Opponents Is Reactor 

Wastes 106 

Nonradioactive Alternatives 106 

Storage of Hospital and Research Generated 
Radioactive Wastes 107 

State's Arrangements for Interim 

Storage 107 

Time Requirement of Other States for 

Disposal Facilities 108 

Hope for More Creative Solution 108 

Main Concern of Opponents 109 

Volume of Medical Waste vs. Reactor 

Waste 109 

Tritium Findings 109 

Model's Findings vs. Data 110 

ROBERT CORNOG, Ph.D. 

Committee to Bridge the Gap 110 

Lethalness of Power Plant Wastes 110 

Confusion in Linking Medical Wastes to 

Power Plant Wastes 110 

Questions by SENATOR PETRIS to MR. HIRSCH re: 

Halting AIDS Research and Treatment 111 

Previous Claims During Nuclear Power 

Plant Hearings HI 

Deadline for All States 112 

Prediction of Events when Deadline Occurs 112 



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XV 



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2 Need for Committee to Weigh Risk 

of Multiple Sites of Urban Storage 

3 vs. Risk to Future Generations 112 

4 Publication Date of U.S. Geological Report 113 

5 Conclusion and Summary by MR. GOULD 113 

6 Challenges Facing Agency 114 

7 Responsiveness of Agency and Governor 114 

8 Willingness to Work Together 114 

9 Statements by CHAIRMAN ROBERTI re: 

10 Desire to Vote for Confirmation 114 

11 Hope that Parties Can Agree on Type 
of Adjudicatory Process 115 



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Withdrawal of Nomination from Committee 115 



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All-time Record for Length of Confirmation 

14 Hearing 116 

15 Discussion 116 

16 Motion by SENATOR MELLO re: 

17 Confirmation be Held in Committee with 
Chair Empowered to Withdraw Nomination 117 

Parties Must Meet and Agree on Some 
19 Type of Adjudicatory Procedure in a 

Draft Document 117 



Discovery 117 

Cross Examination 117 

Rules of Evidence 117 

Availability of Leg. Counsel to Assist 117 

Discussion of Motion 118 



Assurance that Committee Will Meet 
26 Again on Confirmation 118 



Committee Action 120 



XVI 



INGRID AZVEDO, Member 

Unemployment Insurance Appeals Board 120 

Background and Experience 120 

Motion to Confirm 121 

Statement of Support by SENATOR MELLO 121 

Committee Action 123 

MANUEL GUADERRAMA, Member 

Board of Prison Terms 12 3 

Background and Experience 12 3 

Motion to Confirm 124 

Committee Action 125 

Termination of Proceedings 125 

Certificate of Reporter 126 

Addendum: Written Testimony of 

ROBERT J. BUDNITZ, President 

Future Resources Associates, Inc. 127 



1 

P-R-O-C-E-E-D-I-N-G-S 
— 00O00— 

CHAIRMAN ROBERTI: We will not be taking up today the 
appointments of: William Mayer, Director of Mental Health; 
Octavia Deiner, Member of the California Transportation 
Commission; and Benjamin Hacker, Director of Veterans Affairs. 

The next appointment to be considered is Russell S. 
Gould, Secretary of Health and Welfare Agency. 

We've heard Mr. Gould before, and we interrupted the 
hearing pending, I believe, a Legislative Counsel's opinion 
regarding the Ward Valley adjudicatory hearing, which falls 
within your jurisdiction. I think we got back an opinion 
indicating that an adjudicatory hearing is required from our 
Legislative Counsel. 

Have you had a chance, Mr. Gould, to look at our 
Counsel ' s opinion? 

MR. GOULD: Yes, Mr. Chairman, I have. 

CHAIRMAN ROBERTI: Would you like to comment on that? 

MR. GOULD: Yes. 

We have looked at that, and I think what we have 
arrived at is an honest difference of opinion between attorneys 
as to what the legal requirements are in terms of an 
adjudicatory hearing associated with the licensing of Ward 
Valley for a low level radioactive site. 

In reviewing the case, I've asked the Counsel of the 
Department of Health Services to look at the case. They have 
done so. We have gotten input back from the Nuclear Regulatory 



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Commission, who have also confirmed our perspective. We also 
have two court circumstances in which they have reviewed the 
circumstances which sided, we feel, as far as the Department of 
Health Services ' s perspective in terms of that adjudicatory 
hearing. 

I recognize that there is a legitimate difference of 
opinion on this issue, and it's something that the Governor and 
I have discussed. 

I think we have every intent in abiding by the law. 
We want to make sure that the process that we complete is one 
that meets all the full intent of the law, and provides for the 
kind of information so that we can all feel confident that we're 
moving ahead in a process with the siting of a facility that has 
had full opportunity for the public and for everyone to feel 
comfortable with. 

So, we — we acknowledge that difference, and quite 
frankly, I think it's something that we may need to look to the 
Attorney General for or someone else, for some kind of final 
resolution as to what is the proper process. 

We feel strongly that we ought to commit to a process 
that's in keeping with the law, and we have a difference of 
opinion. I suggest a means to resolve that might be to get that 
kind of opinion. 

CHAIRMAN ROBERTI: You're suggesting we get the 
Attorney General's opinion, which I guess is the normal opinion 
that's sought out in these cases. 

Does anybody want to comment? Senator Mello. 



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SENATOR MELLO: I'd like to pursue, there are honest 
differences of opinion between lawyers, but I think we are 
dealing here with the reality of disposing of radioactive waste 
material that non-lawyers, such as scientists and others, are 
trying to bring to our attention the danger. 

I take it, then, and I understand you wrote the 
opinion; is that correct? I don't have a question at this 
point, but I'm glad you're here. 

I think her opinion of the question which stated: 
"The State Department of Health 
Services may not issue a license for 
the disposal of low level 
radioactive waste without 
conducting a hearing pursuant to 
Chapter 5, commencing with Section 
11500, of Part 1 of Division 3 of 
Title 2 of the Government Code." 
Perhaps, Mr. Chairman, with your permission, may I 
ask her? 

CHAIRMAN ROBERTI: Please come forward. 
SENATOR MELLO: What I want from you, all of those 
numbers, we have been talking about an adjudicatory hearing 
under the Nuclear Radiation Control Law. 

MS. KROTINGER: Eve Krotinger, Legislative Counsel. 
Chapter 5 is our state's Administrative Procedure 
Act, and that was the question: is the Department required to 
conduct a hearing pursuant to our state's adjudicatory hearing 



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process? 

SENATOR MELLO: Would this have any relationship — 
I learned a little bit about this in the last hearing, but is 
this the same adjudicatory hearing we were talking about here 
three weeks ago? 

MS. KROTINGER: Yes, but it's — our opinion dealt 
with the state adjudicatory hearing procedure as opposed to 
NRC which is a federal adjudicatory procedure which is governed 
by their, you know, laws and regulations. 

I was referring to our state law. 

SENATOR MELLO: Would you be willing to follow the 
state's procedure for an adjudicatory hearing as set forward, 
Mr. Gould? 

MR. GOULD: Senator, I think the issue is under 
what legal basis can we do that? And that's something — I 
have my counsel here, who might be helpful to the extent you 
want to get into the legal issues. She may be able to speak 
more eloquently than I can. 

SENATOR MELLO: What I really want to know is if 
you're willing to go through an adjudicatory hearing as 
described by Counsel here from the Legislative Counsel's 
Office? 

MR. GOULD: Well, Senator, I think we are — would 
be willing to go through a process to allow for — 

SENATOR MELLO: You didn't hear my question. My 
question is, are you willing to go through an adjudicatory, 
which I understand allows for a disclosure of the files, and 



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cross examination of witnesses, and other parts here set forth 
in our letter here? 

MR. GOULD: Senator Mello, if I could explain my 
answer. 

We would be willing to go through an adjudicatory 
process if it met the conditions that I think the Governor has 
given me very clear instructions of which he feels is 
appropriate in terms of this process. And that is a process 
that provides for a full exploration of the outstanding issues 
so that we can reach a comfort level that all the issues have 
had an opportunity to be explored and resolved. 

At the same time, I think we'd have a strong 
reservation about going into a process that could be abused, 
and that might be abused to the extent that it was merely used 
to elongate the decision-making process, as opposed to coming 
to a resolution on the issues. 

To the extent we met the criteria from the 
Governor's perspective of truly trying to achieve a good 
information flow, and trying to reconcile the outstanding 
issues, I think he would be supportive of that kind of process. 

To the extent that the process was allowed to 
structure itself to provide for an elongated process, which 
would be potentially abused for the purposes of abusing that 
process, I think he'd have very strong reservations about that. 

SENATOR MELLO: I guess your answer is, you want to 
go through the Governor's proposal rather than to follow the 
law that we now have here in California and on the federal 



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level . 

What I want to suggest to you is, because I've seen 
a lot, I mean, you can get into court everyday of the year 
without hardly any case at all. 

What I'm suggesting is without any testimony, 
before January 1, 1993, somebody's sitting around for eight 
years, not doing anything about this to my knowledge. 

But I could foresee a lot of delays following the 
procedure as you've outlined it, because they will get it into 
court. 

MR. GOULD: I don't think there's any question that 
the issue of whether or not the state followed the appropriate 
procedures could be a question that's addressed in court, could 
be a challenged on that. 

SENATOR MELLO: All right, so what I'm saying is, 
it might be faster from my perspective, just listening to the 
testimony here last week [sic], if you had adopted to go 
through the adjudicatory hearing process, using the federal 
regulations, and go through it. It means -- if it's good, it's 
going to come out through it. It's going to be disclosed, 
evidence will be out. People will be able to cross examine, and 
then I think you might be on a fast track to operate and get it 
out faster. 

This process here that you're suggesting could 
prolong it for years, and years, and years. 

The second thing I want to say, from my own 
experience, having dealt with -- I have Diablo Canyon in my 



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district, on was sitting on the Resources Committee, where we 
heard Sun Desert, and we heard the San Onofre plant, and other 
plants, Rancho Seco and Humboldt. All of them plants were 
approved by the Nuclear Regulatory Commission, which has a much 
higher standard than the State of California. All of them are 
— three of them are closed down now: Rancho Seco, San Onofre 
and Humboldt Bay. 

We are spending more money decommissioning San 
Onofre than it cost to build. And the last remaining one, 
Diablo Canyon, which plans are being made to decommission it at 
some point a few years down the road. 

So, what I'm saying, even the NRC, which in my 
opinion has the most strict criteria, have approved plants that 
are now found to be dangerous, and they're being obsolete, and 
they're taking, in effect, closing them down. 

I didn't mention Three Mile Island, also approved 
by them, or other plants around the world. 

In discussing this with people, I went through a 
lot of nuclear plants that were up here. I have supported them 
because I felt that was the way to pursue a good alternative at 
that point, but I just don't want to be part of a generation 
that's going to leave as its legacy a radioactive waste that's 
going to endanger generations to come. And I think that's 
what's on the table here. 

As I said before, I support you up to this point. 
I think you're highly qualified. I think you'll do a great job 
as administrator, the job of Secretary. 



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But all that great job that you can do, and you're 
qualified for, can be eradicated if we just misjudge this 
decision here today on Ward Valley, don't use proper 
precautions to make sure it's completely safe. 

That's why I'm disappointed that you are taking the 
Governor's approach, but he is one branch of government, and a 
co-equal branch with the Legislature, which is us, the third 
branch, of course, being judicial. 

And I'm — when I read the Legislative Counsel's 
opinion, which is our attorneys for the Legislature, it's 
pretty strong. And it says very clearly that you cannot issue 
a license for the disposal of this low level radioactive waste 
without going through the hearings as they have set froth in 
Chapter 5 . 

MR. GOULD: Senator, I said before, I want to 
repeat this very clearly. We will abide by the law. 

To the extent that the Leg. Counsel's opinion is 
deemed to be appropriate, is deemed to be in fact what the law 
provides, I have every intent of following the law, and clearly 
the Governor does also. 

What I'm suggesting is, there are different 
opinions out there, and I appreciate the honesty from which the 
Leg. Counsel's opinion was put forward. I'm not denying that. 

But I also have what I believe are very legitimate 
and honest legal opinions put forth by my counsel that are 
trying to advise me as to what I can do within the law. 

SENATOR MELLO: Do you have copies of that? 



9 

MR. GOULD: Pardon me? 

SENATOR MELLO: Do you have copies of your 
counsel ' s opinion? 

MR. GOULD: I believe she can share all of her 
input with you. She is here. 

SENATOR MELLO: The question is, do you have a copy 
of it? 

MR. GOULD: I don't have a copy with me. 

SENATOR MELLO: Okay. 

Mr. Chairman, I'm sorry. 

Unless he changes his mind, I do not plan to vote 
for your confirmation. I'm just being very firm about it. I'm 
going to feel good with myself, and that's what I have to live 
with. 

But I just can't loosely support something — that 
you have every good intention and so forth — but we're dealing 
with the most potent chemicals here, and they have the 
potential of wiping out the entire planet. 

MR. GOULD: Senator, I share your concern about 
radioactive waste, and that's why both Dr. Coye, who as 
responsibility for this function within the Department of 
Health Services, and I, when we took over, didn't just move on 
the history and the accumulated information that we had from 
the prior Administration. We could have licensed the facility 
and moved on last fall. 

We chose not do that because we wanted to be 
prudent, and to make an informed choice, and to satisfy 



10 
ourselves that we had met every outstanding issue and satisfied 
ourselves that in fact we had met those conditions. 

So, we have not moved forward. 

SENATOR MELLO: You have not moved forward. 

Do you think there would have been legal action 
taken to hold up your moving forward? 

MR. GOULD: I can't speculate. I suspect there 
would have been legal challenges. 

SENATOR MELLO: That's right. I've seen them 
happen . 

Thank you. 

CHAIRMAN ROBERTI: Senator Petris . 

SENATOR PETRIS: Well, we have got, obviously, a 
tough problem here. 

In view of this conflict or difference of opinion, 
we have to seek a way out. 

I was at the prior hearings and persuaded that we 
ought to go for an adjudicatory hearing. And I was wondering 
why, even before you came on the scene, why that wasn't done? 

It raises suspicions that whoever made the decision 
back then was afraid to face a full-blown hearing, where, under 
the code, a person, any person interested, can request a 
hearing and be made a party of the hearing, must be made a 
party by the agency. When they have the status of a party, 
that means they can engage in the proceedings, participate. It 
means they can cross examine, go through discovery, and so 
forth. 



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So, I think that was a bad mistake made back then. 
If they had gone the other way, this whole thing would have 
been over, and it either would have been operating or not. It 
would have been approved or not, and probably gone through the 
appellate process. 

I'm a little puzzled by the Governor's — I can 
understand the Governor has very strong feelings on this, 
because I've talked to him. 

One of the problems I have is that he seems to 
believe that if you follow the procedures set forth in the 
code, that that's an abuse because it takes time. If you go 
through the procedure, and then there's an appeal, he can 
foresee, you know, a pretty long time before the matter's 
resolved. 

I would suggest the same thing Senator Mello has 
said as a practical matter. From what I can gather in talking 
to opponents of that site, or those who want to get a full 
hearing so you get all the expert testimony before a formal 
tribunal and a formal decision, if you wait until the licensing 
is completed, and you make a decision, it's going to be 
challenged in a court. 

And I think Senator Mello is right. By the time 
you run that through its course, you'll undoubtedly take longer 
than an adjudicatory hearing, even if you decide we're going to 
have a hearing next week or next month. 

So, it seems to me, it would be saving time if we 
blew away this controversy by going ahead with the hearing. 



12 

Let me ask what the alternative might be. I'm 
looking now at the ingredients of an adjudicatory hearing, and 
I'd like to know what would be removed from that and still make 
it a viable hearing that satisfies the requirements. 

The essence of the hearing process would be some 
kind of a judge. It would be testimony under oath, and that 
would be recorded. The purpose of having it recorded is to 
establish the foundation for an appeal, if either side wants to 
appeal it. It would mean the right to cross examine witnesses: 
their experts, your experts. And then, the issuance of a 
formal decision. 

Which of those ingredients would you find 
unacceptable or time-consuming to such an extent that they 
ought to be skipped? 

Do you have an alternative that you can offer that 
says: "Well, we're going to essentially comply; we will be in 
substantial compliance." We know that means not 100 percent, 
but close enough to accomplish the goal nevertheless. 

Can you give us an idea on that? 

MR. GOULD: Yes, Senator. 

SENATOR PETRIS: Excuse me. 

I told the Governor, if I see a procedure that 
satisfies the basic requirements, and at the same time is 
quicker, that's fine with me. 

So, if you can answer that, it would be helpful to 
me in assessing the situation. 

MR. GOULD: Okay. 



13 

Well, I think what the Governor has indicated to 
me, and I don't know if he shared it with you, but I think he's 
willing to be open to a process and to discuss which elements 
are agreeable to both parties in terms of what route we ought 
to go. So, I don't think that I can give you definitively 
every answer, but I think he's willing to talk about what 
process . 

And I think his concern is a process that has the 
potential to be elongated beyond what is needed to address the 
issues in question, and to fashion something so that we had 
some expectation of a reasonable end in sight. And I think 
those are things that he is willing to talk about, in 
discussions I've had with him, and fashioning something that 
would achieve those ends . 

SENATOR PETRIS: You don't have one clearly in mind 
right now? 

MR. GOULD: Well, I really don't. You know, I 
think the fact that he indicated to me that he was willing to 
talk about a process, work with the Legislature on one that 
would provide for a full information -- with the ability to 
have a give and take among the experts; they can isolate all 
the information, resolve the outstanding issues -- he thinks is 
appropriate. 

So, I think those kinds of elements which get us to 
the point where we have that kind of exchange — some of the 
comments I heard is that people didn't really have a chance to 
talk to each other, and to inquire about how people came to the 



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conclusions that they came to. 

I believe it's appropriate to have that kind of 
dialogue. 

I'm not an attorney nor a judge, so I'm not sure I 
can give you all the answers in terms of the specifics. But 
clearly, the Governor and I have an interest in opening up the 
process to provide that kind of exchange. 

And I think there should be a record, and there 
should be a finding. 

SENATOR PETRIS: Suppose we have an agreement, and 
there is a hearing, or some abbreviated procedure. And some 
people who are not even here examine the results on either 
side. They don't like the results. They can challenge the 
entire process because we haven't stuck 100 percent to what 
they believe is the only proper process, and that is the 
adjudication. Then you've got another big-time delay. 

It seems to me, everywhere you turn, you face the 
prospect of a delay. 

I don't like to have it called abuse. We've been 
waiting three weeks for an answer on what kind of hearing, and 
we haven't had one, for good reasons, but I could call that 
abuse. It's not fair to accuse people who use a process that's 
been in place by statute for a long time, and is there for that 
purpose, you know, to go through the procedure. It's not fair 
to say you're going to abuse the system. 

A lot of people have told me that about Proposition 
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upset because insurance companies are now jumping into court, 
and there's going to be a lot of delay in determining that. 
They claim that's abuse. 

I have to give them a lecture on Civics I, wait a 
minute. I think they're perfectly proper in taking advantage 
of whatever remedies are provided by law, and if it drags out 
for five years, and goes all the way to the U.S. Supreme Court, 
they have that right . 

I don't think you should call that abuse. That's 
what I've been telling people who are on my side of that issue. 

And I feel the same way about this one. 

So, what you're suggesting is to go ahead, open the 
dialogue, try to arrive at some arrangement. 

It sounds very fair and reasonable to me, but what 
I'm afraid of is, you're exposed to the same delay problem and 
the same legal attack problem. Whatever device we agree upon 
between the two branches of government is not binding on 
anybody out there. Even if some people in this room agreed to 
it, they only represent certain bodies of opinion, or maybe a 
formal organization. Beyond that, there are people out there 
who are going to say, "I don't like the decision. You agreed 
the decision was to reject that site, and I think that site 
should have been chosen; therefore, I'm going to challenge the 
whole thing. " 

That's the risk you take whichever way you go. 

MR. GOULD: Senator, I've had my counsel advise me 
that if we were to adopt a process without a legal basis for 



16 
doing so, that that can create some exposure also. 

SENATOR PETRIS: They're saying — 

MR. GOULD: Well, it's a little different. They're 
saying if we agreed to adopt a Nuclear Regulatory Commission 
process without the legal basis to do so, that could -- there 
could be challenges based on that because it's not clear, 
contrary, I think, to the opinion that you have from your 
Counsel that that is the appropriate legal remedy and the legal 
route to review a license. 

That's why I'm suggesting that maybe getting advice 
from the Attorney General, which could independently review the 
situation and make a judgment call, so as to hopefully avoid 
any delay. Because I think we all want a responsive process to 
look at the issues come forth. 

SENATOR PETRIS: What would the form of the 
question be? Would you ask him, "Is this the right process?" 

MR. GOULD: I think we'd ask him what is the right 
process . 

I'd be open to having that issue as an open-ended 
question. 

CHAIRMAN ROBERTI : The Attorney General now is in 
litigation, has filed an amicus curiae brief with the Supreme 
Court. 

On what point was that again? 

MR. GOULD: I believe that's on the state's rights 
issue, Senator. 

SENATOR PETRIS: Title? 



17 

MR. GOULD: That's right, on take title provisions 
that were within the federal law to ascertain whether or not a 
state really was under obligation to take title to waste as 
provided under federal law. It's a state's rights issue. I 
think the Attorney General has presented an amicus curiae to 
the New York case before the Supreme Court. 

SENATOR PETRIS: It wouldn't be the same issue 
we're asking here, but it's tangential. 

CHAIRMAN ROBERTI: Well, thinking out loud, an 
Attorney General's opinion, and at the same time, I take it, 
your position would be to have, even awaiting that, a hearing 
process before an administrative law judge. 

Am I right? 

MR. GOULD: Yes, or we could start a process. 
Frankly, I think it ' d be helpful to start the exchange of 
information. You know, we want to open the process up and have 
that dialogue. 

So, I think we can work with you in terms of the 
sequence. 

You know, I think clearly, as part of this, we're 
also looking at a moratorium on granting a license to resolve 
this question. We're really looking at trying to take a step 
back, and to look at the question of what is the appropriate 
legal process, to start opening up the dialogue so we can 
resolve these issues. 

SENATOR PETRIS: How long would the moratorium be? 

MR. GOULD: Well, I think it would be until we 



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completed a process that we agreed upon, and certainly had 
ratification from the Attorney General that we were acting 
within the law. So, I would see that certainly being a number 
of months. 

SENATOR PETRIS: Who has the authority to impose a 
moratorium? 

MR. GOULD: That would be something that we would 
just do within the Administration and commit to. 

SENATOR PETRIS: You're satisfied that, 
administratively, it's permitted? 

MR. GOULD: Yes. Clearly, we run, you know, into 
federal law, and in fact some exposure to the state beginning 
in January of 1993, in terms of the potential of where our 
waste might go, and whether or not we would be precluded from 
going to Nevada or to Washington or South Carolina, the three 
operating sites. 

I think -- I think that becomes an issue, but I 
think we could put a moratorium on for a period of months while 
we resolve the issue. 

SENATOR PETRIS: On the title issue, my 
understanding is that the local aspect of that has to do mainly 
with the liability worry, that the feds don't want it. They'd 
be very happy to give us the property. That's why the law says 
you've got to take it, as I understand. 

Our people at the state level have say, no, they 
don't want it because of the liability. And that's the issue, 
I think, in New York; isn't it? It's the constitutional right 



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of the feds to impose that transfer on the states. 

Actually, it's not the title they're worried about; 
it's the liability that goes with it, and that's a very big 
issue. And I guess that would have to be addressed. We can't 
ignore that. That's got to be part of our consideration. 

I don't mean ours in this Committee, but in the 
process of resolving the issue there in Ward Valley or any 
other place. 

Well, I'm glad I'm not sitting where you're 
sitting. It's tough enough being where I am. 

CHAIRMAN ROBERTI: So, I take it, you would seek a 
moratorium? 

MR. GOULD: Yes, sir. 

CHAIRMAN ROBERTI: And begin a hearing process 
before an administrative law judge. We would await an opinion 
from the Attorney General . 

I wonder what the process is in the Attorney 
General's Office for opinions in this area? I assume he 
doesn't write the opinion himself. 

Can anybody help us on this? 

SENATOR PETRIS: On the Attorney General? 

CHAIRMAN ROBERTI: Yes. 

SENATOR PETRIS: Well, I have another preceding 
question. 

CHAIRMAN ROBERTI: Yes, please. 

MS. BRANDT: Mr. Chairman, my name is Lisa Brandt. 
I'm the Chief Counsel for the Department of Health Services. 



20 

I spent 16 years in the Attorney General's Office. 

The Attorney General currently has a dedicated 
Opinion Unit, a group of senior lawyers who write opinions. 
That is their entire job in the office. And those opinions are 
subject first to peer review, and then to supervisory review. 

On matters such as this, it would be subject to 
review by the Attorney General himself, I would assume. 

CHAIRMAN ROBERTI: But before it gets to the 
Attorney General, however, there is a nonpolitical — we're all 
political people, political animals, and we might as well face 
that fact of reality -- a nonpolitical process? 

MS. BRANDT: That's correct. 

The actual writing of the opinion is done by the 
civil service employees in the Opinion Unit. 

CHAIRMAN ROBERTI: Does that happen before the 
Attorney General necessarily sees the opinion? 

MS. BRANDT: That's correct, and it is, as I said, 
it is subjected to peer review. 

CHAIRMAN ROBERTI: And it's subjected to peer 
review before it goes to the Attorney General? 

MS. BRANDT: That's correct. 

I'm not going to represent to this Committee that 
there is no political involvement at any point in the process, 
because it is the opinion of the Attorney General. 

CHAIRMAN ROBERTI: I understand that, but I'm 
trying to acquaint myself with what the process is before it 
gets to him. 



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MS. BRANDT: That's correct. 

SENATOR PETRIS: Well, Mr. Chairman, I feel like 
the patient who's been given good news. He's not inclined to 
run out and seek a second opinion. 

When you get bad news, you want a second opinion. 

Those who want a second opinion feel that the 
Legislative Counsel's opinion is bad news. I think it's good 
news, and I'm not interested in the Attorney General's opinion, 
or anyone else's, for that matter. 

I wouldn't support getting another opinion. 

It's kind of a slap at the Legislative Counsel. 
It's our counsel. We asked him a question. And in other kinds 
of proceedings here, I've stuck with Counsel, even when I 
didn't agree with the opinion as a lawyer. 

MS. BRANDT: Senator, if I may respond to that. 

It is inevitable that by the point where the 
Legislative Counsel issued an opinion on the subject, there was 
already a legal opinion which had been provided to Mr. Gould 
and the Governor's Office. 

SENATOR PETRIS: By the A.G.? 

MS. BRANDT: No, by — by my office. 

SENATOR PETRIS: Internal, yes. 

MS. BRANDT: I have spent 18 years practicing 
administrative law. I have done considerable writing and 
lecturing in the area of administrative law. 

And I think that I can address correctly whether an 
APA-type hearing is required under this section. 



22 

The Legislative Counsel's opinion starts out by 
reaching for legislative intent by comparing state 
administrative law to the federal administrative process. And 
going back to 1926, the opinions of the California Supreme 
Court have been that California administrative procedure 
follows the State Constitution, and does not in any way follow 
federal administrative law. 

So, there is a very fundamental flaw in the 
Legislative Counsel's opinion. 

SENATOR PETRIS: Even where there's federal 
involvement and participation in the policy decisions, such as 
stuffing a piece of property down our throat that we may not 
want? 

MS. BRANDT: The federal — 

SENATOR PETRIS: Doesn't that automatically kick in 
certain federal statutes? 

MS. BRANDT: The federal law, Senator, was enacted 
-- written by and enacted at — upon the lobbying of the 
National Governors' Association, so it was not entire a federal 
idea. It was the states who wanted this law. 

SENATOR PETRIS: Yes, but we're talking about a 
federal statute — 

MS. BRANDT: That's correct. 

SENATOR PETRIS: — regardless of who asked for it. 

MS. BRANDT: It is a federal statute which the 
states asked for. And under that statute, the states made 
certain agreements that they would be responsible for the waste 



23 
generated within their own borders . 

The federal government has never had responsibility 
for this waste. The shift in responsibility that happens 
January 1 of 1996 is a shift from the responsibility on the 
part of the generators located within California to the state. 

SENATOR PETRIS: To the state. 

MS. BRANDT: It's not from the federal government 
to the state. 

SENATOR PETRIS: Are you saying the federal 
government has no liability whatsoever, even if it's federal 
property, and they condone the use of it for that purpose? 

MS. BRANDT: I can't make that broad a statement, 
Senator, because there — if there's federal property, there 
may be federal liability. 

But we ' re not talking about waste that is generated 
on federal property and that is created by the federal 
government. We're talking about waste that is, for example, 
generated by the University of California, by the state itself. 
It ' s not waste that the federal government is giving us . It's 
waste that we're generating within California. 

SENATOR PETRIS: I was referring to the ownership 
of the property. 

MS. BRANDT: Right now, the federal government owns 
the property — 

SENATOR PETRIS: Ward Valley right now is owned — 

MS. BRANDT: The State of California is attempting 
to acquire the property for the purpose of using is for this 



24 
site. 

SENATOR PETRIS: But at first go-around, the State 
Lands Commission said no, but that's only preliminary, I 
understand. 

MS. BRANDT: The State Lands Commission has not, to 
my knowledge, officially said no. They have indicated through 
staff that — 

SENATOR PETRIS: Yes, that's why I said 
preliminary. 

MS. BRANDT: — there's a certain lack of interest 
at the moment . 

SENATOR PETRIS: Well, it seems to me — I not here 
to argue — I'd like to have a copy, if you'd reduce that to 
writing. 

MS. BRANDT: I have not reduced my advice to 
writing, Senator. And one very good reason for that -- 

SENATOR PETRIS: That's all right. I'm not asking 
you to do it, but if you had one, I'd like it prepared. 

MS. BRANDT: We — I know everyone has said it is 
likely that this will end up in litigation. I think it is 
inevitable that this will end up in litigation. There is so 
much emotion attached to this issue, that even if the state 
does everything absolutely correctly — 

SENATOR PETRIS: It'll be challenged. 

MS. BRANDT: — there will be litigation. 

SENATOR PETRIS: I agree. I said that earlier. 

MS. BRANDT: I'm very hesitant to put legal advice 



25 
in writing simply because in state government, even legal 
advice occasionally makes it into the public record if it's in 
writing. So, I have given my legal advice verbally to 
Mr. Gould, Secretary Gould. 

SENATOR PETRIS: Okay. 

Let me just ask you again about the effect of the 
property remaining in public ownership — excuse me, federal 
ownership. 

Doesn't that automatically bring into the picture 
whatever pertinent federal statutes there are regarding that 
subject? 

MS. BRANDT: No, Senator, it would not. 

The property would not remain in federal ownership 
and be used as a low level waste site at the same time. 

It's been made quite clear by the Bureau of Land 
Management that if we want to use it for the site, we need to 
own it before we use it for that. 

SENATOR PETRIS: Why is that? 

MS. BRANDT: So, that would not be an issue. 

SENATOR PETRIS: Why is that? 

MS. BRANDT: Because it's our site, not their site. 

SENATOR PETRIS: Not now, it isn't. 

MS. BRANDT: Well, the proposed site would be the 
site of the Southwestern Compact, for which California is the 
host state for the first 30 years. Thereafter, it cycles 
through the other states in the Compact. 

SENATOR PETRIS: Well, I've been told the reason 



26 
they're anxious about that is to make sure that no liability 
attaches to them. They don't want their fingerprints on it, 
and they don't want any chain of title that shows that they 
have a present interest in it at the time that it's converted 
to that use. 

MS. BRANDT: I have no reason to believe that, 
Senator, because all of the — all of the compacts have had to 
develop sites, and in all cases, the site is land that is owned 
by the state, not land that's owned by the federal government. 

SENATOR PETRIS: I understood the statute provides 
that the site must be owned by either the state or the federal. 
It doesn't say -- 

MS. BRANDT: The statute doesn't provide for that. 

SENATOR PETRIS: It doesn't say it must be owned by 
the state. 

MS. BRANDT: No, that's correct. 

SENATOR PETRIS: It could be owned by the feds. 

MS. BRANDT: But the federal government is free to 
take a position that the state must own it. 

SENATOR PETRIS: Yes, they're reluctant. Well, I 
want to know why . 

The feds usually hang on to the property as long as 
they can, you know. We've got umpteen million acres in 
California that are still owned by the feds, and there have 
been a lot of business groups trying to pry that loose for 
decades. They're not letting go. 

But they're very eager to let this go, and that 



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raises questions as to why, other than some administrative 
convenience. 

But if that's not within your scope, it's okay. 

MS. BRANDT: It's been fairly clear that the 
development of low level radioactive waste sites in all of the 
compacts has been a federal priority. 

So, I would assume the reason that the Bureau of 
Land Management has been cooperative with the State of 
California over acquisition of this site is that they do view 
this as a federal priority to assist California in developing a 
site. 

SENATOR PETRIS: But not when they're the 
landlords . 

MS. BRANDT: Again, this is a state responsibility 
according to the federal law. 

SENATOR PETRIS: Well, if the feds kept the 
property and said, "Go ahead and use it. We'll sign an 
agreement permitting you to use it for this purpose, " do they 
have any continuing activity that they're compelled to engage 
in? 

MS. BRANDT: Senator, I would have to speculate 
about exactly what the nature of the agreement would be, and it 
could be almost anything. 

SENATOR PETRIS: Okay. 

Thank you. 

MS. BRANDT: Mr. Chairman, if you have any other 
questions for me, I'd be happy to answer them. Otherwise I'll 



28 
let — 

SENATOR MELLO: Mr. Chairman, I'd like to. 

CHAIRMAN ROBERTI: Senator Mello. 

SENATOR MELLO: There's been some statements made 
here about the Legislative Counsel and their opinion, just 
tossing it off as another person's opinion. 

And I have the highest regard for Bion Gregory and 
his complete staff there. 

You mentioned that one flaw here — I went back and 
I counted. This is more than just an opinion. They have — 
they're quoting cases, case law: one, two, three, four, five, 
six, seven, eight, nine, ten eleven. Eleven cases that are 
there to back up their opinion. 

And I think, from my perspective, they have been 
nonpolitical in any case, shape or form. 

Now, who is political, if you want to talk about 
it, is Dan Lungren. Witness the action taken recently against 
Bill Honig and Bill Bennett, two persons that had Grand Jury 
charges brought against them, but the Governor, right at this 
moment, is already planning, as said in the newspaper this last 
week, to decide who the appointment's going to be to replace 
Mr. Honig and Mr. Bennett. 

If that's not political, I don't know what is. 

And Mr. Gregory has had far more years of 
experience in leading that fine staff in the Legislative 
Counsel's Office than Mr. Lungren has. He was a 
Congress person, and came here and was elected District 



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Attorney [sic] in 1990. 

But I would certainly hate to see this issue move 
into the Attorney General's hands, number one. 

And number two, what I hear Mr. Gould talking about 
is, we have to open up the dialogue. Well, you know, dialogue, 
as I understand it, means you have to sit down and talk with 
people. But once tomorrow is over, if he's confirmed, the 
dialogue will lessen, and the process will lessen to the point 
where I think all the people that are now opposing this matter, 
wanting a more stringent hearing in the adjudicatory process, 
are going to be left out. Well, they might be not left out of 
the dialogue, but they're going to be left out in the decision. 

MR. GOULD: Senator, I want to be very clear. 

My commitment to you and to the rest of this 
Committee is not for one day. It is a commitment to do a 
process where we have a full exchange of information. And 
that's my commitment. 

It is not something that dies in one day. 

SENATOR MELLO: Let me ask you something. I've 
been a business person. I'm not a lawyer. 

What does the word "process" mean? And what does 
the word "open up the dialogue"? To me, it doesn't mean much. 
You can just sit down and talk and fully comply with that. 

I think you would — I respect your integrity, and 
so forth, but the chips are heavy here. I mean, we're dealing 
with the low level nuclear waste. And I don't think anything 
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Valley. I do support — we need a disposal site here in 
California, but the way that site is going to be selected, and 
the way the process is going to be working so that material can 
be disposed of safely has to go through the most stringent 
terms, as far as I'm concerned. 

So, I hear, "Let's bring Dan Lungren into it," 
you're not even willing to share your opinion with us. We've 
shared our opinion with you fully. And the cases cited here by 
her are fully listed here to back up her statement. 

What she said, she has an in-house opinion that 
! she* 11 rewrite, or so forth. Why don't you lay all the cards 
on the table? Is that dialogue? I mean, is that what the 
people out here can expect in this dialect [sic] process that's 
going to take place? 

MR. GOULD: Senator, I think I've described to you 
that we are willing to have an adjudicatory process as long as 
that process — 

SENATOR MELLO: A process or hearing? 

MR. GOULD: I don't know what the proper term is, 
if you want to call it hearing, but I think there's a question 
about how we structure that process. And I think that's the 
issue we need to talk about, and we're willing to work with you 
on. 

And I think that there are differences in terms of 
how you structure that, that can keep the process focused, keep 
it on track, and still result in a full exchange of 
information, and so that we get to the bottom of and have an 



31 
opportunity for everyone to satisfy the issues that are 
outstanding. 

SENATOR MELLO: Well, from what I learned about 
adjudicatory process just a few weeks ago, it's a formalized 
hearing that requires a full disclosure of information in each 
other's files, and the hearing can -- you can have cross 
examination of the witnesses. And the finding made by the 
hearing officer and the judge has to be made on the evidence 
that ' s presented . 

Now, that is what I'm looking for. That's a formal 
type hearing as now set forth by the Nuclear Regulatory 
Commission. 

MS. BRANDT: Senator Mello, there is no such thing 
an adjudicatory hearing as a concept. There are various types 
of hearings that have been defined as adjudicatory. There is a 
type of hearing that's held under Part 10 of the Code of 
Federal Regulations by the Nuclear Regulatory Commission. 

There is an entirely different kind of hearing that 
is also referred to as an adjudicatory hearing that is held 
under the California Administrative Procedure Act. Those 
hearings do not look the slightest bit alike, and they are 
entirely different in their procedure. 

There are other hearings that are also referred to 
as adjudicatory that are entirely different in procedure. 

So, there is no such thing as an adjudicatory 
hearing, and you know it when you see it. 

The thing that is adjudicatory is the decision that 



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comes out at the end of the hearing, basically. 

SENATOR MELLO: What I'm looking for is an 
adjudicatory hearing that includes: the disclosure of 
information in the files; the includes the cross examination of 
witnesses; and that the decision be made on the evidence. 

MS. BRANDT: The problem with having that type of a 
hearing and allowing every person who wants to participate to 
participate is simply insurmountable, because there is not 
anywhere in the entire country an administrative procedure that 
provides for that. That is simply a type of hearing that no 
one has ever had. 

SENATOR MELLO: Can't you limit it to — 

MS. BRANDT: The Nuclear Regulatory Commission — 

SENATOR MELLO: Can't you limit that to ten persons 
from each side, or twenty? 

MS. BRANDT: The Nuclear Regulatory Commission 
normally limits participation to somewhere in the neighborhood 
of two to four parties, and that's for a nuclear power plant 
construction. 

SENATOR MELLO: What's wrong with doing that? 

MS. BRANDT: Under the opinion that was issued by 
the Legislative Counsel, that would not be permitted because 
the Legislative Counsel has interpreted a statute that says 
every person who wants to participate must be allowed to 
participate, to require that they be allowed to participate in 
a type of hearing where everyone can get separate discovery, 
everyone can have separate counsel, everyone can have separate 



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pleadings filed, everyone can have separate cross examination. 
That is simply a totally unmanageable style of hearing. 

SENATOR MELLO: So, you're saying we should not go 
to that because of insurmountable number of people to be there 
testifying? 

MS. BRANDT: What I'm saying, Senator, is that 
that's some additional evidence that the Legislature could not 
possibly have meant that that is the kind of hearing that was 
to be held. 

SENATOR MELLO: I think as you go in, both sides 
could agree to setting forth the number of persons testifying 
on both sides, and that's it. And if they were adequate 
enough, I think there might be one or two people that has 
enough information there to be able to make the proper 
testimony. 

But I don't say limit it to that. Make it so that 
people can testify. 

What are we afraid of? That's what I'd like to ask 
you. Are we afraid of what's in our files, and our witnesses 
subject to cross examination or disclosure? 

MS. BRANDT: Senator, the files have been made 
available. They have — 

SENATOR MELLO: Yes or no. 

MS. BRANDT: I'm not afraid of anything. The files 
have been made available. The information has been made 
available. 

The problem with making witnesses subject to cross 



34 

examination on some of these technical issues is that that is 
an extremely difficult thing to do. The -- normally, technical 
issues are not resolved by having lay witnesses testify subject 
to cross examination by lay people in an administrative hearing 
context . 

The way that these technical issues have been 
jresolved is to have contractors prepare technical treatises. 
They have all been part of the public record. There have been 
extensive hearings, and the way in which the information has 
been handled is that the people who had concerns were allowed 
to express those concerns without any limitation, and the 
Department has responded in writing to those concerns and will 
continue to respond in writing to those concerns . 

SENATOR MELLO: They had a hearing in San Luis 
Obispo before the Diablo Canyon nuclear plant opened up. They 
brought a hearing officer out, and they heard from everybody 
there at the hearing. It lasted two or three days, and it gave 
everybody a chance to testify. 

And after they found -- after they licensed the 
plant, PG&E had to go back and hire Bechtel at a cost of $2.2 
billion to bring up the safety factors in that plant that 
already had been proved by the NRC . 

But finally it was delayed another two years. The 
cost ended up $7 billion, but it operated, started up. Now 
it's operating with a high degree of safety, I think, even 
though it ' s had a few minor leaks . 

But if they'd have let that plant open up before 



35 

they'd gone back in and rehabilitated the plant, there could 
have been a major Chernobyl down there in San Luis Obispo. 

But that's what the process does, I think. It 
shows the faults with what's being planned. 

And I'm just very sorry that the State of 
California and you Department is unwilling to really meet a 
tough test for disposal of nuclear waste that the evidence 
there is — shows the half-lives and the years this can be 
there, generating radiation damaging to the public health and 
safety of our people, can go on for so long. 

We said last week, look at the dumping out in the 
Farallon Islands. What kind of hearing did that have? I guess 
it had a hearing, but there's 50,000 drums sitting out there 
containing nuclear waste, and I think we regret very much — 
the people who were part of that decision regret very much that 
someday that decision will come back to haunt us. 

I just don't want to see some more Farallon 
Islands, I mean, the disposal of waste out in the ocean, or 
anywhere, where it's going to come back and haunt us. 

So, that's why I think we really have to open up 
our files here, and open up our cards, and make sure when this 
plant — when this Ward Valley disposal site is opened, it's 
going to be a safe operation. 

MR. GOULD: Senator, think the Governor has 
committed with Senator Roberti in his discussions that he is 
willing to go through an extensive process. And if that means 
an adjudicatory hearing in order to effect that, that's fine, 



36 
as long as we have safeguards in terms of the mechanics and the 
process so that is it not a potential process that can be 
exaggerated beyond getting the meaningful data necessary to 
make a decision. 

SENATOR MELLO: Well, I hate to say this, but 
think, you know, you're going to end up in court following it 
that way, and it's going to be a long haul, and a very costly 
one, and a lot of delays. 

And it could be resolved very simply if you'd just 
sit down and work out — just commit to a system that's going 
to satisfy the requirements of this permit. 

But if the Governor — you know, he's a powerful 
person, but whatever he commits to, it's going to fall short of 
what I think I'm asking for, and what Senator Petris is asking 
for, and what many of our witnesses here are asking for. 

Thank you again, Mr. Chairman. 

CHAIRMAN ROBERTI: Any other comment from Senators? 

I would suggest that we stand in recess. I know we 
have a lot of witnesses, but we heard a lot of witnesses during 
the last hearing. And the purpose of this hearing wasn't 
really to take witnesses. 

That's true, we did not take witnesses from the 
proponents of the site. 

Who is here to testify in favor of the Ward Valley 
site? Well, I guess we have to be fair about this. 

I have in front of me: Eric Lapalla, Senior Vice 
president of Harding Lawson Associates; Carolyn Owen, Health 



37 
Physics, Northern California Health Physics Society; William 
Larson, a Radiation Safety Manager at TRW; William Otterson, 
Board Member and Co-Founder of National Association of Cancer 

Patients; Dr. Alan Pasternak, Technical Director of CAL RAD 

i 
Forum. 

Are they all here? There are four of them, okay. 

Donna Earley, Director of Radiation and 
jEnvironmental Safety, Cedars Sinai Medical Center; Kenneth 
Widder, CEO, Molecular Biosystems; Bob Lull, Doctor, Chief of 
Nuclear Medicine, San Francisco Hospital; Ron Gaynor, Senior 
Vice President, U.S. Ecology; Steven Romano, Vice President and 
Manager of California Operations; Ed Cook, Vice President of 
Operations, Gen-Probe; Larry Respess, Vice President, General 
Counsel of Ligand Pharmaceuticals; and Lynn Wallis, Manager of 
Media and Environmental Info Programs and Consultant in Health 
Physics and Nuclear Safety for General Electric. 

Are they all here? 

Is there anybody that I didn't mention? 

If you can try to keep it relatively brief, I'd 
appreciate that. 

Mr. Eric Lapalla, Senior Vice President of Harding 
Lawson Associates. 

MS. OWEN: Senator Roberti, we had an order to 
present the people to you. Is that okay, or would you like — 

CHAIRMAN ROBERTI: That's fine. 

MR. LAPALLA: If we could do that, I was going to 
go somewhat later in the program. 



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CHAIRMAN ROBERTI: That's fine with me, yes. 

MS. OWEN: Thank you. 

My name is Carolyn Owen, and I'm a certified Health 
Physicist. I currently work as the Director of Environmental 
Health and Safety for a major biotechnology firm in the Bay 
Area by the name of Kyron. 

I've also been the Radiation Safety Officer for 
U.C. Davis for the last ten years. 

I'm here as the President of the Northern 
California Chapter of the Health Physics Society. I represent 
about 300 members that are health physicists. That is the 
profession of overseeing the safe use of radiation. That is 
what we do. 

We are here to tell you as a consensus that my 
group has reached that we want to endorse the Ward Valley site; 
that we feel strongly that the design of the site has been 
thoroughly looked at by professionals, and that it is a safe 
design. 

We feel that this is California's best option. We 
feel that it ' s critical that you know that the research that 
goes in with use of radiation, both medical and from many 
applications in the research setting, will be halted if this 
site is not licensed. 

And we have tremendous concern. When I hear you up 

j 

Ihere talking of moratoriums, and of stopping this process, I 

become tremendously worried. 

My company does infectious disease research, 



39 
primarily AIDS research. We work on vaccines. We work on 
therapeutics for cancer. 

You will halt our research if you go forward with 
halting the licensing of this site. I have tremendous concerns 
about that. 

It think it's critical work. And if we can't do it 
in California, we will have no choice but to leave California. 

CHAIRMAN ROBERTI: Explain to me how we would halt 
the research. 

MS. OWEN: Be happy to. 

Last year, to give you an idea of the volume of 
radioactive waste we generated, we generated about 16 tons. 
I've heard that you were given testimony that this material 
could fit in a shoe box. Let me tell you, last year it fit in 
90 55-gallon drums. 

It is not material that is small in quantity. It 
is not just short half -life material. It occupies a tremendous 
volume to us, 16 tons. 

It also is a variety of half-lives. If we were to 
start a decay program of site storage today, the minimum short 
half-life isotope that we have would have to be held on site 
for five months. Most of the isotopes would have to held up to 
three years. That's just the short half-life isotopes. 

My company does not have the capability to store, 
nor do I feel that it is safe to store, those quantities of 
waste in the Bay Area, in high population regions, for up to 
three years of time. 



40 

The long-lived isotopes we also work with, we 
cannot rely on decay. They are not going to decay in our 
lifetime. Those materials will simply be stored indefinitely. 

This is not a safe situation, and this situation 
jhas to be resolved. And it is our professional opinion, 
meaning the Health Physics Society, which is a large national 
organization that is involved with this issue on a daily basis, 
that this site is the safest solution. 

And I encourage you to divorce the issue of 
Mr. Gould's confirmation, and to confirm him based on his own 
merits, not on this issue. And to move forward without delay 
so that our research, which I consider critical to the health 
and welfare of the people in this state, will continue. 

Thank you. 

CHAIRMAN ROBERTI: Thank you very much. 

Next. 

MS. EARLEY: Senator, may name is Donna Earley. 
I'm the Director of Radiation and Environmental Safety at 
Cedars Sinai. 

I'm here representing not only Cedars Sinai, but 
the Southern California Health Physics Society. 

And it's also our consensus that we need to move 
forward with this process. An adjudicatory hearing will delay 
the opening of this site far beyond our storage capabilities. 

At Cedars Sinai Medical Center last year, we did 
thousands of nuclear medicine procedures. We processed over 
'one million clinical laboratory samples. Our volume of waste 



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and our storage facilities, we also are located in the city. 
We're in the city — near the city of Beverly Hills. We cannot 
expand. I cannot built another facility to store this 
material . 

Our research will halt. We are already putting our 
researchers on notice as of January of this [sic] year, we will 
stop our research. We have no choice. 

This is AIDS research. This is diabetes, 
Alzheimers, genetic research for children. 

Unlike the biotech firms, we can't move. We're 
going to have to stop our research to make room for decay of 
our short-lived material. By April of '93, that will be full. 
We will have to start choosing which patients will get nuclear 
medicine procedures, which ones will get therapeutic 
procedures, and which don't. Not a position that I want to be 
in, not a position that you would like to be in. 

Again, we would like to follow the previous 
testimony and urge you to take this issue out of this hearing. 
This isn't the place for it. 

SENATOR PETRIS: Question, Mr. Chairman. 

CHAIRMAN ROBERTI: Senator Petris . 

SENATOR PETRIS: The first witness. 

MS. OWEN: Yes. 

SENATOR PETRIS: You know the site down there at 
Ward Valley? 

MS. OWEN: Yes, I do. 

SENATOR PETRIS: How long has it been under 



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consideration? 

MS. OWEN: I'm not the best person to ask that. 
It's been quite a number of years. I want to say eight. 

SENATOR PETRIS: All right. Eight years ago, if 
you'd been invited to give the statement you just gave to a 
court — 

MS. OWEN: Uh-huh. 

SENATOR PETRIS: — would you have done it? 

MS. OWEN: Absolutely. Eight years ago I was 
involved in this issue. 

SENATOR PETRIS: My problem is, how come it wasn't 
done eight years ago and avoid all of this today? 

MS. OWEN: The said topic is that radiation is a 
controversial topic, and I can — know many chemicals that are 
much more hazardous than radiation, but you raise that word and 
it's a red flag. And it has been like that for a number of 
years. It's unfortunate. 

SENATOR PETRIS: I know, but you're willing to make 
a statement where you can be questioned about it. 

MS. OWEN: Yes. 

SENATOR PETRIS: And different statements made by 
others are also exposed to the bright ray of light, and that's 
how we arrive at these things . 

How about you? Would you have been willing to make 
the same statement — 

MS. EARLEY: Senator, I have made these statements 
before other — other committees of this Senate. I have made 



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these statements at many public hearings. 

SENATOR PETRIS: So that's not a problem with you. 

MS. EARLEY: There have been — you know, listening 
today, it sounds like no one's ever had an opportunity for 
hearing. There have been many, many, many public hearings, 
this has not been a secret process. It has been discussed — 

SENATOR PETRIS: We're not talking about planning 
commission hearings, where you go in there and speak for five 
minutes . 

MS. EARLEY: The League of Women Voters has put on 
hearings. There was hearings held in all of the -- 

SENATOR PETRIS: Those are planning commission-type 
hearings, town hall meetings, and they're wonderful, and they 
have their place. 

But there are others who disagree with your 
testimony, and some of them are experts in the field as well. 
And they have very knowledgeable counsel who can flush out the 
differences and conduct a very meaningful cross examination. 

I don't think you'd object to that. You obviously 
have tremendous confidence in your position. 

So I guess what I'm asking is, again, this all 
happened before the current nominee came on the picture, I 
don't know why in the world it wasn't done back then to avoid 
this kind of problem later on? It should have been done a long 
time ago. It certainly would have been over by now. It would 
have been over quite a long time ago. It's just very sad. 

The stakes are so high. If we're going to make 



44 
mistakes, it ought to be on the side of over-caution — 

MS. OWEN: Absolutely. 

SENATOR PETRIS: — rather than helter-skelter. 

MS. EARLEY: But the result will be many storage 
sites around this state. That will be the result. 

If you're concerned about safety, then you should 
really start being concerned. We're talking about people who 
will be inappropriately storing; people who won't have the 
health physicists on staff to determine what's safe. 

SENATOR PETRIS: Where is your storage? Is it 
right there at the hospital? 

MS. EARLEY: It's right on the hospital grounds. 

SENATOR PETRIS: And yours is — 

MS. OWEN: The same, right in Emeryville. 

SENATOR PETRIS: I've been there. I've been 
through that. I didn't know you stored that stuff there. 

MS. OWEN: Absolutely. It's part of our daily 
lives . 

SENATOR PETRIS: May I be excused, Mr. Chairman? 
[Laughter. ] 

SENATOR PETRIS: I need to go get an examination. 
[Laughter. ] 

CHAIRMAN ROBERTI: What do you do? Increase the 
size of the room? 

MS. OWEN: We will expand and use our warehouses 
'til they're fill, and then we will have no choice but to move 
out. And that will be our plan. 



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MS. EARLEY: Many of our — our samples are 
biological samples. We're talking about blood tissue, 
cultures. You can't store them forever on site, you know. 
This — we have to worry about smell, you know. It's not like 
it's all paper and gloves that we can just put in a barrel and 
leave sit for five years. We don't have that space. 

MS. OWEN: I'm only concerned, Senator Mello, when 
you speak about safety, that you really address the issue of 
the fact if we do store bulk quantities of radioactive wastes 
throughout this state, that that presents a far greater safety 
hazard at this point, and we're really concerned about that. 

CHAIRMAN ROBERTI: Thank you very much. 

Question of Mr. Gould. What is the objection to 
cross examination of witnesses during the hearing, which would 
be an expansion on what I think the Governor has proposed? 

MR. GOULD: Well, I wasn't privy to that 
discussion, but, you know, in the discussions we have had, I 
think he was very clear that a good exchange and a give and 
take, where you do get a chance to question and to find out and 
resolve those issues, was appropriate. 

So, I'm not aware of any specific reservation. I 
think we can work that issue out as we try to design a process 
that we could mutually agree to. 

CHAIRMAN ROBERTI: Maybe after we hear the 
witnesses, that should an aspect of any hearing, if we agree to 
a hearing. 

Next witness. 



46 
DR. LULL: Senator, thank you for allowing me to 
present my views and the views of the California Medical 
Association, which I'm representing here, which represents 
organized medicine in California. 

I'm Robert Lull. I'm a physician actively 
practicing nuclear medicine as Director of the Department of 
Nuclear Medicine at San Francisco General Hospital. I'm a 

jClinical Professor of Laboratory Medicine and Radiology at the 

i 

University of California, San Francisco. I'm certified by both 
the American Board of Internal Medicine and the American Board 
of Nuclear Medicine, and I am a fellow of both of their 
colleges . 

This year I'm also President of the National 
American College of Nuclear Physicians. 

My testimony here supports the immediate 
confirmation of Mr. Gould and also of Dr. Coye without the need 
for any adjudicatory hearings on the Ward Valley low level 
radioactive waste site. The reason for that is because it is 
our opinion that all questions which have been raised by the 
opponents of the site have already been adequately addressed, 
answered, and documented in prior hearings and public meetings 
over the past decade. 

The California Medical Association is on record in 
support of immediate licensure and development of the Ward 
Valley low level radioactive waste site because, after our very 
thorough investigation, it has been shown to be the safest way 
to deal with radioactive waste that occurs from the necessary 



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use of isotopes in medicine and bio-medical research. 

I'd like at this point to comment on three specific 
[areas when it's come to my attention that false claims about 
the medical need for radioactive isotopes have been made by 
opponents to the Ward Valley radioactive waste site. The three 
claims that have been made are: number one, non-isotopic 
methods can be used as alternatives to radioisotopes in 
bio-medical and molecular biology research. This is false. 

Number two: that nuclear medicine and radiation 
therapy only generates small quantities of short-lived isotopes 
that can be stored for decay on site. This is false. 

And number three: that patient care will not 
suffer if the Ward Valley site is delayed by adjudicatory 
hearings which would last for one or more years . This is 
false. 

Let me talk about these. Now, you've heard this 
evidence from people who have reputable scientific backgrounds, 
but these are individuals who seem to be dedicated and driven 
by a very strong desire to eliminate nuclear power plants from 
ithe state. This desire is sometimes so strong that it seems to 
have allowed them to lose scientific objectivity in some of 
jtheir claims. 

However, I think you should be aware that the truth 
is readily available and can be shown objectively about these 
three claims. Let's look at some of the objective data. 

The first is that radioisotopes are needed for 
molecular biology and bio-medical research. Last week, when I 



48 
heard about these hearings, I pulled out my latest journal of 
the research work entitled, "BLOOD". This is a journal 
produced by the American Society of Hematology. They do much 
work and research in bio-medicine and particularly molecular 
biology. 

I have available copies of this for you. What I 
did is, I highlighted and I wrote in the margins the research 
reports that required isotopes. You can see the highlighting: 
7 3 percent of all the reports in this journal, which was 
published just last month, required isotopes. Now, they did 
use nonisotopic techniques. The fact is that in spite of the 
presence of non-isotopic techniques, there is still an absolute 
need to use radioactive isotopes. 

The next point that I would like to make is, this 
came from a conversation I had just this morning before I left 
San Francisco General Hospital to come to this hearing. I 
called Dr. Warner Greene, who is the Director — he's the 
Director of New AIDS Research Center that just opened on the 
14th of February on the campus of San Francisco General 
Hospital . 

I'll show you this here, and I have copies of this 
available for all of you, too. This is the open house 
announcement, and I've quoted his quotes to me this morning, 
and he'd be very happy to talk to you if any of you wish to 
contact him, or if you generate a letter, to state these 
things. And what he quoted me is: 

"The inability to use radioisotopes 



!8 i 1 



49 
because there is no disposal for 
low-level radioactive waste in 
California would stop our research 
dead in its tracks . " 

The next quote he said is: 

"In many cases, we must use a radio- 
isotope test; the non-isotope 
techniques are just not as 
sensitive. " 

This is from the most expert person we have on AIDS research in 

the State of California, the new Director of our AIDS Center, 

funded by the state and the Gladstone Foundation. 

Now, please distribute those and the "BLOOD" 

comments I have with my own analysis of that for each of the 

Members. Please hand those out to them also. 

Nuclear medicine still needs low level waste 

disposal, in spite of the fact that we oftentimes use short- 

'lived isotopes. You can't forget the fact that our 

I 

[manufacturers who supply us with our short-lived isotopes 
generate low level waste in the process. If they have no place 
to put that low level waste, our supply of short-lived 
isotopes disappears, and our ability to treat and diagnose 



ipatients will disappear 



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Also, there is a new technology, the cyclotron 
technology, which generates isotopes on site. These are also 
short-lived isotopes, but the by-products of that isotope 
generation is a material, a targeting material, that requires 



50 
low level waste disposal. Just this week, they're putting one 
of these cyclotrons into the Sutter Hospital here in 
Sacramento, and there are others around the state. 

The third of these false assumptions is that 
patient care will not suffer. Patient care will suffer if this 
Ward Valley site is delayed further because you initiate 
adjudicatory hearings as part of this process. The facts are 
that we don't have the ability to store material. At the 
University of California San Francisco, we have a maximum waste 
reduction program already in place. Last year, we generated 
12,000 cubic feet of radioactive low level waste. We 
compacted that down to 6,500 cubic feet of waste. That's 87 
55-gallon barrels. That's with maximum reduction. 

We calculated, since we've already passed the time 
in California where we're going to be able to get the low level 
waste site open in time for the 1 January cutoff, we've been 
looking at what we're going to do, as part of our deliberations 
in our Radiation Control Committee at the University, which I'm 
a member of. They suspect they could probably easily store 
material on site for three months, six months at the outset. 
Beyond that, we're going to have to shut our researchers off. 
It's as simple as that. 

My Nuclear Medicine operation will have to cease 
because I won't be able to get isotope supplies, and I won't 
have any place to put my low level waste, and I still do ship 
low level waste, even though we try to store for decay a 
majority of it. 



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So to sum up, all the issues raised here have 
already been studied and adequately answered and are well- 
documented. They do not, in the opinion of myself and the 
California Medical Association, justify further adjudicatory 
hearings . 

The California Medical Association requests that 
the Committee confirm the appointments of Mr. Gould and also of 
Dr . Coye today . 

If this Committee requires adjudicatory hearings on 
Ward Valley, you must be aware of the consequences of such a 
delay. And those are going to be that bio-medical research in 
California will stop in less than a year; multiple temporary 
waste storage sites will develop scattered in highly populated 
areas of the state, and this will be a real radiation hazards, 
unlike the Ward Valley site, which is not a real hazard; many 
patients will suffer needlessly. 

And I think you should be very aware of this, that 
your decision today will impact people, real people with real 
diseases who need real care. These people will suffer, and 
they will die early. This is particularly true of patients 
with heart disease, cancer, and from my institution, patients 
with AIDS. 

I thank you for your patience in hearing this . I 
have a few other comments that I've generated just listening to 
the discussion. 

My question is, where were the opponents who are 
now raising these issues during the past ten years, when we had 



52 

all these other hearings and meetings? Why did they wait 'til 
the last minute? What are their motives? 

The Ward Valley site was developed because of 
bipartisan law passed by the California Legislature. This is 
not without prior legislative hearing and/or debate. 

The opponents to nuclear power will always have a 
complaint and will use any means to stop this or any other 
low level waste site as a weapon in their war against nuclear 
power plants. Even with adjudicatory hearings, these opponents 
would be expected to still use the courts to try and block a 
site for low level waste. 

Interestingly, nuclear power plants have far more 
storage capacity on site than do the bio-medical researchers, 
hospitals, and universities, which will essentially need to 
stop operating in about a year at the outside. 

Thanks a lot for your time. 

SENATOR MELLO: Mr. Chairman. 

CHAIRMAN ROBERTI: Senator Mello. 

SENATOR MELLO: A couple of statements he made are, 
one, you state that the adjudicatory hearings will destroy any 
possibility of Ward Valley disposal site by needless delay. 

You're not weighing the possibility of a needless 
delay if we go through the process put forth by Mr. Gould. I 
think one is as speculative as the other. 

From my perspective, I see an awful lot of lawsuits 
brought against CEQA and all these other processes. They can 
tie you up in court. 



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But my second question, more importantly here, 
you're alleging that anti-nuclear power protesters and supposed 
jenvironmental groups from outside California, such as 
Greenpeace, are looking for a way to stop any development of 
the Ward Valley site in their attempt to shut down nuclear 
power plants . 

Now California, my information is that we only have 
one left operating, Diablo Canyon. Mr. Willoughby was here a 
second ago from PG&E. I was going to ask him this question. 

I don't know of any single incident from any 
protesters at all, Greenpeace or anyone else, that they're 
trying to shut down Diablo Canyon. 

Do you have evidence of that to back up the 
statement you made? 

DR. LULL: Well, my comment comes merely from 
conversations that I've had with protesters. 

SENATOR MELLO: I'm talking about evidence. Do you 
have any evidence to back up your statement? 

DR. LULL: Just verbal comments that I've gotten 
from them is my evidence, and their statements that that's what 
they intend to accomplish. 

SENATOR MELLO: I'm going to check with the Sheriff 
down there in San Luis Obispo County. I have never heard, 
since those original protests of the start-up, where they tried 
to climb over the fence and there was many arrests made, but 
once the plant's been operating, the protests, I think, have 
disappeared. I don't know of a single one that's been made 



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down there . 

Now, as far as Rancho Seco, or San Onofre, those 
are shut down anyway. So is Humboldt. 

So, I mean, you said conversations. I'm just 
looking for some evidence that Greenpeace and others are trying 
to protest the shutting down of Diablo Canyon. 

DR. LULL: Senator Mello, the comment there is not 
that they are trying to shut Diablo Canyon. They are opposed 
to nuclear power plants in general and feel that the 
development of a low level waste site will allow continued 
operation of nuclear power plants. And I think that is the 
major agenda that is motivating National Greenpeace to become 
involved in this, and also to motivate certain other groups 
that have become active only recently as the Ward Valley site 
was approaching decision time. 

SENATOR MELLO: Do you know of any utility anywhere 
in the United States that has any plans at all to build a 
nuclear generating plant? 

DR. LULL: No, I know of none. 

SENATOR MELLO: I don't either. They've abandoned 
that. PG&E, I know, I've been talking to them, they have 
absolutely no plans whatsoever of ever trying again to build a 
nuclear generating plant. 

So, I just want to point out, I think you're trying 
to, you know, point out that Greenpeace and others are protest 
groups, which they — I mean, Greenpeace, I don't belong to 
them, but I just give a lot of credit for what they're doing. 



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They're trying to stop the taking of whales, and they're 
involved in a lot of environmental issues, as far as I'm 
concerned. 

But I don't know, speaking for the one remaining 
plant in California, I don't know any protest groups trying to 
shut that down. 

Thank you very much. 

DR. LULL: You're welcome. 

SENATOR PETRIS: Mr. Chairman. 

CHAIRMAN ROBERTI: Senator Petris . 

SENATOR PETRIS: I just have a couple. 

I was going to ask the same question that you 
asked. One of the prior witnesses said that this site has been 
under consideration for eight years. 

I wondered if your group and other similar groups 
leaned on the state to hurry up and get the process started and 
finished so that that site could be used as far back as eight 
years ago? 

DR. LULL: I know that the California Medical 
Association was actively involved in overseeing the development 
process of the site. They felt that it was necessary to be 
able to have continued access to low level waste disposal in a 
safe fashion. 

They were concerned that a waste site be developed 
jin California in accordance with the requirements of the 
I federal law, and the subsequently passed California state 
legislation, bringing this into being in a safe fashion that 



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would protect the health and safety of the citizens of 
California, and allow the continued use of isotopes as 
necessary in the practice of medicine and for research. 

SENATOR PETRIS: Did they communicate the urgency 
of that to the Governor at the time? 

DR. LULL: I believe that that's been communicated 
jby the California Medical Association, and that they have 
repeatedly pointed out the necessity to meet the federally 
mandated deadlines for the Ward Valley site, or whichever site. 
Once Ward Valley was selected, and this was reviewed by the 
CMA, and felt to be an adequate location for shallow land 
burial, the CMA has supported that and the process, and urged 
completion of this process. 

And that's why I'm here, is to continue to urge 
completion of that process, so that the patients that we take 
care of in California don't suffer because of a lack of needed 
diagnostic and therapeutic isotopes. 

SENATOR PETRIS: Well, your testimony is very 
compelling, and it's also very frightening. 

I'm wondering, with that degree of urgency, why the 
Medical Association didn't insist on having the Governor move 
very quickly, and having his Agency, prior to this nominee — 
years prior to this nominee — move quickly on this, do 
whatever hearings are necessary, and get on with it? 

I see a big gap here in the sense of urgency as 
it's expressed now, and its apparent lack of communication at 
that level with the Governor. I know it's past history, but 



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I'm curious about it. 

Do you have any comment on that? 

DR. LULL: Yes, Senator. 

I believe that the California Medical Association 
did request a speedy approval, and did support adequate 
hearings . 

It was the opinion of the Department of Health 
Services and of the CMA that hearings were quite adequate, that 
there was ample opportunity for protest, for resolution of the 
protest that were — every protest that was made, and comment 
was adequately answered by the Department of Health Services . 

SENATOR PETRIS: Did you testify, did you speak at 
any of these meetings? 

DR. LULL: I didn't personally, but there were 
others who spoke on behalf of CMA, yes. 

SENATOR PETRIS: Would you have been willing? 

DR. LULL: Oh, yes, I would have. 

SENATOR PETRIS: Would you have been willing to 
defend your position in a more formal proceeding under cross 
examination and under oath? 

DR. LULL: I would have been very willing to do 
that, and would still be willing to do that. 

However, I would point out that I don't believe 
that oath and cross examination would elucidate the safety and 
health of this site any better than has already been done by 
the process that's occurred up to this point. 

SENATOR PETRIS: Speaking as an attorney, I can 



58 
tell you, you'd be surprised how elucidating some of the 
questions can be, and how much light can be shed in that 
process . 

I know it's not the normal process that a citizen 
goes through. 

It seems to me that you have tremendous confidence 
in your position, and that you would have and should have been 
a witness in a more formal proceeding years and years ago, and 
that you would have alleviated the concern that I have, which 
naturally flows from a refusal to have this adjudicatory 
hearing. 

I don't know why it's in the code if it doesn't 
apply. 

You would have given a good account of yourself. 
You don't have anything to hide, do you? Are you afraid to 
face somebody — 

DR. LULL: No, sir. 

SENATOR PETRIS: — that's questioning you that may 
be hostile, that maybe has a client that has a different 
approach? You wouldn't shy away from that, would you? 

DR. LULL: No, Senator. I don't believe any — I 
don't know of anyone who seems to have anything to hide who is 
a proponent for the low level waste site development. 

SENATOR PETRIS: Okay, then — 

DR. LULL: And I understand your concern that it's 
so late now, because that's our emphasis. Our emphasis is 
that, for whatever reason, it is late, and requesting an 



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adjudicatory hearing now will hurt people, and it will have a 
profound impact on the — on medicine and on the bio-medical 
research industry throughout California. 

SENATOR PETRIS: Has this eight-year delay hurt 
people? 

DR. LULL: During this eight years, we have had 
access to the low level waste site in Nevada and Washington 
State, and will until the first of January, according to the — 
we have a ten-year period to develop a low level waste site in 
this Southwest Compact. The time is running out, and as of 
1 January 1993, that we will no longer be able to ship our 
wastes to the shallow land burial sites that are currently 
operating and receiving all of California's radioactive waste 
in Washington State and Nevada. 

I can tell you that the low level waste site that's 
been designed at Ward Valley is superior to either of those 
sites . 

SENATOR PETRIS: You're familiar with it? 

DR. LULL: Sufficiently, yes. I'm not the most 
expert of the people around, but I'm sufficiently familiar with 
it to know that this is a superior site. 

This is probably a better site than any that have 
ever been developed for radioactive waste disposal in terms of 
safety for the surrounding area and for the environment. 

SENATOR PETRIS: Thank you. 

DR. LULL: You're welcome. 

SENATOR MELLO: Mr. Chairman. 



60 

CHAIRMAN ROBERTI: Senator Mello. 

SENATOR MELLO: Clarification of a statement that 
he said that January 1st, 1993, you'll be denied access to 
these sites in Washington and is it Arizona? 

DR. LULL: In Nevada. 

SENATOR MELLO: Nevada. 

My understanding of the law is, they're not going 
to deny access, but the EPA and the NRC said that these states 
may, may choose not to accept this low level waste from other 
states, including California, as of that date. 

There's nothing to prohibit them, as I understand 
it, the decision, from accepting this low level waste, but they 
have the option of not accepting it. 

DR. LULL: Well, I have — I probably couldn't 
satisfy your need for proof on this, but I have attended 
meetings where the responsible officials in those states have 
stated that they will cut us off. I believe they've done that 
in writing, but I don't have a copy of that. 

SENATOR MELLO: They might, but under the law that 
I understand, it said that they can choose not to accept your 
waste as of that date, from that date forward. 

DR. LULL: They've said that they will not accept 
it, and we've been put on notice. 

And so, that's why we're concerned, because we 
already are less than a year away from that, and I've been told 
that it will take at least a year to build the low level waste 
isite should it get licensed. That's why our discussions in our 



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Isotope Committee at the University of California San Francisco 
have achieved such urgency in terms of what we're going to do. 
Because we know that already now the time is ticking away where 
we're going to have to store on site, because there will be no 
place to ship it in next January and February and March. We're 
already three months down the pike. 

We've only got a couple more months, and we're 
going to — we won't have space. We don't know -- maybe we'll 
come up with a clever idea, but we don't know what that idea is 
right at this moment, Senator. 

So, it will affect our programs, and it will affect 
our researchers, and it will affect our patient care, both in 
nuclear medicine and radiation therapy. It'll affect cancer 
patients, cardiac patients, and most profoundly AIDS patients. 

SENATOR PETRIS: I'm sorry, another question. 

CHAIRMAN ROBERTI: Senator Petris . 

SENATOR PETRIS: Are you familiar with the company 
that's the designee, Ecology U.S.A.? 

DR. LULL: U.S. Ecology? 

SENATOR PETRIS: Yes, U.S. Ecology. 

DR. LULL: I'm somewhat familiar with them, yes. 

SENATOR PETRIS: One of the reasons for opposition 
here is that they seem to have had a pretty bad track record in 
two other states where they're being sued. And they were 
denied an application in a third state because of the track 
record in the other two. 

It seems to me that ought to be cause for concern. 



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But you're not familiar enough with their — 

DR. LULL: Well, I'm familiar with some of those — 
some of those charges and the concerns, and I can understand 
where superficially one might be concerned. 

But the company that had those original — those 
other sites were essentially — it was essentially a different 
company. And this company now owns two of the three operating 
sites in the country and has been operating them. Without 
them, we wouldn't — we'd be in a mess already and have no 
place to put our radioactive waste. 

They seem to be doing a very adequate job in those 
other sites. And we believe that their track record, and their 
ability to stand behind the safe operation of this site has 
been guaranteed by the structure of the entire compact 
agreement and the controls that have been placed upon them by 
the State of California. 

SENATOR PETRIS: Is that with the knowledge of 
what's happened in the other states? 

DR. LULL: That's with the knowledge, yes. That 
was not hidden knowledge. That was well-known by everybody 
from the beginning, from when they first applied for the 
contract. 

SENATOR PETRIS: So you feel whatever mistakes were 
made back there are not likely to be repeated here? 

DR. LULL: As a matter of fact, it's interesting. 
One of the mistakes was one where — which seemed to be related 
to the use of liners, something which the opponents of the site 



63 

have insisted should be done, which actually was the source, 
which is why the NRC no longer — actually specifies that you 
not use liners, because they feel it's actually a radiation 
hazard. And so, it's interesting how people switch stories and 
use one part of it against them, and another part propose that 
as something we should have, as what appears to be, although I 
couldn't prove it, but it appears to be motivated as a delaying 
tactic rather than based on a scientific need. 

SENATOR PETRIS: Thank you. 

CHAIRMAN ROBERTI: I think we should break for five 
minutes right now. 

[Thereupon a brief recess was taken.] 

CHAIRMAN ROBERTI: Dr. Lull, we were listening to 
you. You may continue. 

DR. LULL: I'm responding to questions, if there 
are any. 

CHAIRMAN ROBERTI: Any questions of Dr. Lull? 

No, thank you for your testimony. 

DR. LULL: You're welcome. Thank you for 
listening to me. 

Next witness, please. 

MR. COOK: My name is Ed Cook. I'm Vice President 
of Operations for Gen-Probe Incorporated in San Diego. 

I'm here today to represent Gen-Probe and the 
biotech manufacturing industry in San Diego. Gen-Probe 
develops, manufactures, and markets medical diagnostic kits. 
We're the world leader in commercialization of genetic-based 



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diagnostic tests, specializing in the rapid detection of 
infectious and life-threatening diseases. Gen-Probe currently 
Markets three radioactively labeled products . 

During the past four years, we have modified our 
production processes and methods to reduce already low 
personnel exposure rates to non-detectable levels for most 
employees. We have replaced four radioactively labeled 
products with non-radioactive substitutes . Currently we have a 
fifth product in clinical trials which, if successful, will 
replace yet another radioactive labeled product. 

We also have an ongoing program to try short 
half-life radioactive isotopes and non-radioactive methods as 
alternatives in both research and manufacturing. I must point 
out, however, that non-radioactive alternatives, such as 
luminescent labels, do not eliminate the need for use of 
long-lived radioactive elements in biotech manufacturing. 

Even for our non-radioactive products, 
radioisotopes are used in the purification and quality control 
processes . 

Radioisotopes are also utilized for the maintenance 
and quality assurance of several common types of luminometers . 
These luminometers are light-reading instruments utilized with 
these diagnostic tests, both by manufacturers of the tests and 
by the hospitals and clinical laboratories who use these tests. 

Finally, the rush to non-radioactive alternatives 
must be undertaken cautiously, due to the potential for 
exposure to chemical substances which may be more hazardous and 



65 
less easily monitored than the radioactive materials being 
replaced. 

Gen-Probe has committed significant resources to 
minimizing uses of radioactive materials. We have not been 
able to eliminate the use of long-life radioactive isotopes, 
nor will we be able to in the foreseeable future. 

I was quite disturbed by misinformation provided to 
this Committee on March 18, indicating that use of short-lived 
isotopes and radioactive substitutes negated the need for a 
disposal facility. On-site storage of radioactive wastes will 
create a significant burden to biotech manufacturing firms in 
California. 

Other biotech manufacturing firms in San Diego have 
stated their serious concern that they may be forced to 
relocate outside of California. 

I have here a binder containing 105 letters 
supporting the Ward Valley project. Included are numerous 
letters from biotechnology executives documenting the 
importance of radioactive waste disposal to our industry. 

I urge this Committee to recommend confirmation of 
Russell Gould without any conditions linked to the Ward Valley 
project. 

I would be pleased to answer any questions that the 
Committee may have. 

CHAIRMAN ROBERTI: Thank you very much. 

Are there any questions? No questions. Thank you 
very much. 



66 

MR. COOK: Thank you. 

CHAIRMAN ROBERTI: Next witness, please. 

MR. WALLIS: Mr. Chairman, Members of the 
Committee, I am Lynn R. Wallis, Manager of Media and 
Environmental Information Programs for G.E. Nuclear Energy, and 
a consultant in Health Physics and Nuclear Safety for all G.E. 
company operations, worldwide. 

I'm a physicist by education, and a licensed 
professional nuclear engineer in the State of California, as 
well as a member of the board of the CAL RAD Forum. 

I have 33 years of professional experience in the 
nuclear field, and I'm pleased to have this opportunity to 
testify before you today. 

Over the past several years, the State of 
California, through its many agencies, has reviewed in detail 
and at great expense the issues associated with the proposed 
low level radioactive waste disposal site at Ward Valley. In 
my view, all legitimate technical issues have been answered, 
and the safety of the storage techniques has been established. 

It is time to move ahead with the construction and 
operation of the site. California should be focusing on the 
federally mandated site opening date of January 1, 1993. 

As you're well aware, federal law requires that 
each state or region site a low level radioactive disposal 
facility by January 1, 1993. After that date, there will be no 
place for California companies to ship such waste if other 
sites are closed. And storing waste on site will be the only 



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option, as you've already heard, an option that is sure to be 
expensive, burdensome, and ultimately politically explosive for 
companies, hospitals, and universities in urban areas. 

Termination of programs, again as you've heard, may 
be the only long-term option, an option that would adversely 
affect health care in California. 

It sounds like the stuff of science fiction, but a 
new innovation, the cobalt-60 gamma knife — I have one right 
here. Before you evacuate the room, I assure you it's a 
non-radioactive variety. It enables doctors to perform brain 
surgery without a scalpel. Instead, they cut out tumors with 
jfinely focused rays of radiation. The knife is being used by 
medical centers around the world, including California, on 
patients with previously inoperable brain tumors. So far, 
nearly 4,000 patients are reported to have recovered after 
treatment with the gamma knife. For people without hope, the 
gamma knife offers hope. 

Unfortunately, this tool may become unavailable 
worldwide if the radiation sources can no longer be produced in 
California because of an inability to dispose of the low level 
waste produced in their manufacture. The knife is produced by 
no other company in the world. 

Because the uses of radioactive materials are so 
diverse and widespread throughout the economic and the 
institutional life of California, it really is difficult to 
quantify a dollar value for that portion of the state's economy 
that will be at risk. But it's obvious that there would be 



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economic impact because the use of radiation and radioactive 
materials is so diverse throughout the state's economy. 

Radioisotopes are used in research, in addition to 
medical applications, research and pharmacology, biochemistry, 
genetics, physiology, microbiology, immunology, ecology, 
geology, and there are various chemistry, physics, and 
engineering sciences that all require the use of radioactive 
materials. And you've already heard described some of the 
University of California programs that use radioactive 
materials . 

At a minimum, further delay will only serve to 
increase costs for disposal, a burden which I believe is 
unnecessary and inexcusable. 

I urge you to take prompt action to resolve the 
current impasse by confirming Russell Gould. Delays are 
unnecessary and potentially would be damaging to the state's 
best interests . 

Thank you. 

CHAIRMAN ROBERTI: Thank you very much. 

Any questions? Senator Petris. 

SENATOR PETRIS: Well, that's very interesting 
testimony, but it doesn't speak to the process, and it doesn't 
speak to why all this wasn't done eight years ago. 

Now that the process is being insisted upon, 
there's a big emergency and a delay problem. 

I find it fascinating, that enormous contribution, 
that one little thing you offered us, because I don't know of 



69 
anybody in this room that's says stop making those things, you 
know. 

MR. WALLIS: I don't think anybody in this room 
would like to see the device, you know, the stopping of the 
manufacturing of the devices, but that would be the end result 
if we have no place to ship our waste. 

We also manufacture a lot of the radioisotopes used 
by the hospitals. That generates low level waste, and you 
know, without a place to dispose of it, we can't produce those 
devices as well. 

This device has to come back to our facilities 
every five years for recycling and re-manufacturing. So, it's 
not just something you manufacture and put out and forget. It 
does come back. 

SENATOR PETRIS: Do you track it, keep a record of 
where all of them are? 

MR. WALLIS: That's right. 

And rather than throw it away, we're going to 
re-manufacture it. But to re-manufacture it, we produce low 
level waste. 

SENATOR PETRIS: How long does it take to produce 
one of those? 

MR. WALLIS: Well, we can produce one of these 
probably — actually, it takes 12 of these for the device used 
in the hospital. Twelve of these kinds of sources. 

We can produce one of these, you know, in a week. 
It's an art. It has taken us 30 years. We have put in place 



70 
facilities over these 30 years that allow us to manufacture the 
device. The French have tried; they've failed. The Canadians 
have tried; they have failed. We are the only manufacturer 
because we have the expertise. 

SENATOR PETRIS: And you're in San Diego? 

MR. WALLIS: We're in the Bay Area. 

SENATOR PETRIS: Oh, the Bay Area. 

MR. WALLIS: Yes, our headquarters is located in 
San Jose. 

SENATOR PETRIS: Now what's it called again, a 
gamma knife? 

MR. WALLIS: It's a gamma knife, yes, sir. 

SENATOR PETRIS: As in alpha, beta, gamma? 

MR. WALLIS: Yes, sir. It's cobalt-60. The rays 
are focused into the area in the brain where the tumor exists, 
or the cancer. You know, some are inoperable. You can't get 
to it with a knife. This device can cure the individual. And 
it's unique. 

SENATOR PETRIS: Thank you. 

CHAIRMAN ROBERTI: Any other questions? 

Next witness. 

MR. LAPALLA: Good afternoon. My name is Eric 
Lapalla. I'm Senior Vice President for Harding Lawson 
Associates, and a principal hydrogeologist with that firm. 

I welcome the opportunity to speak with you today. 

In terms of credentials, I have over 24 years of 
experience as a professional practicing hydrogeologist, 13 of 



71 

those were with the U.S. Geological Survey, the nation's 
foremost independent expert agency in evaluating hydrogeologic 
problems. While at that agency, I spend five years on the 
research of the flow and transport processes involved with 
problems of disposal of both high and low level radioactive 
waste in arid environments . 

I've been involved with the process that — the 
processes that have resulted in the selection and 
characterization of the Ward Valley site since 1983. That is 
significant, because the Ward Valley site did not just happen. 
We went looking for an ideal site. 

Since the inception of this project, I've been 
involved in directing our field investigations as well as our 
scientific and engineering assessment as to the suitability of 
the Ward Valley to meet the requirements of an ideal site. 

The ideal site has been defined in several places. 
They've been defined in Nuclear Regulatory requirements. They 
have also been defined in various publications of the U.S. 
Geological Survey, most recently a symposium that was held in 
Big Bear Lake in 1987, in which the U.S. Geological Survey 
concluded that an ideal site anywhere in the country for the 
disposal of low level radioactive waste would be in an area of 
extreme aridity, low precipitation, a very thick zone between 
the land surface and the water table; a zone that was 
predictable in terms of how water migrated through that zone, 
and an area that was distant from any potential uses of 
groundwater, and an area that the transport of groundwater both 



72 
from land surface to the water table and to the discharge point 
in the basin could be predicted. In fact, it is a requirement 
of the State of California, as well as NRC, that a site must be 
capable of being characterized, modeled, and monitored. 

The reason I'm here today is to correct four 
statements that have been entered into the record of this 
hearing and in other forums across the country, including in 
Washington, D.C., that are incorrect with regard to analyses 
that have been made at the Ward Valley site. 

The first incorrect statement is that the 
assessment of recharge at the site was relied on the comparison 
of only total annual precipitation at the site, balanced 
against the total annual evaporation at the site, and that that 
comparison was only made based upon one year's data. That is 
an incorrect statement, as I will show you in a moment. 

The second incorrect statement is that the 
observation of tritium in soil gas at the site to depths of 100 
feet could only have resulted, could only be present, as a 
result of infiltration of precipitation from the land surface 
down to 100 feet, and that such infiltration and transport 
occurred in less than 35 years. That is an incorrect 
interpretation of the facts. 

Third incorrect statement that was made was that 
the models that have been used to characterize this site, that 
have been used for performance assessment to demonstrate the 
protectiveness of the site, are incorrect because they've been 
based upon erroneous data and fallacious assumptions. That is 



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an incorrect statement. 

The fourth item is that the Ward — the valley in 
which the Ward Valley site exists, Ward Valley, is -- 
discharges both surface water and groundwater to the Colorado 
River. And the claim has been made that there are U.S. 
Geological Survey reports that state this. That is also 
incorrect . 

With regard to the first issue, moisture movement 
at the site, particularly the recharge to the groundwater, 
there have been hundreds of actual measurements at the site 
that clearly show that the net movement of water is upward at 
the site. 

Now, you have to understand that water moves as a 
liquid; it moves as a gas, as water vapor, and it moves in 
response to the gravity; it moves in response to pressure 
gradients, and it moves in response to temperature gradients. 

The upward movement at the site is caused by the 
fact that it doesn't rain very much there. There are plants on 
that desert floor which, if you've been out to the desert, you 
know that they don't occupy the whole desert floor. There's a 
reason for that. The roots from those plants are very shallow 
rooted, and they are — extend to the areas between the plants 
to capture all the precipitation, or virtually all of it, that 
falls on the land surface. Otherwise, they couldn't survive. 

Precipitation during storm events does in fact 
infiltrate the surface. However, it only moves to a depth of 
less than a few feet before it moves back upward by evaporation 



74 
due to the dry atmosphere, as well as to — as by extraction by 
these plant roots. 

Although all the measurements at the site show that 
there is a net potential upward gradient at the site, even if 
that were not true, even if there were a downward gradient with 
a unit gradient of one, because of dryness of the site, and the 
ability of the materials between the land surface and the water 
table to conduct moisture because of the low potential of that 
at such dry conditions, the recharge rate at the site would be 
less than four-ten thousandths of an inch a year. This is 
using an analysis that is a similar analysis that was done at 
the Beatty site, which has been accepted by the U.S. Geological 
Survey . 

The ability of the unsaturated zone between the 
land surface and the water table to retain large volumes of 
water is an important part of the site. It is the buffer zone, 
it is the primary line of defense against groundwater 
contamination at the site. So, it's important that this zone 
be able to retain any volumes of water that might fall on it 
and infiltrate. 

To demonstrate that this zone has such capability, 
we performed an infiltration test. We ponded water on the 
site to a depth of three feet, at an experimental site, and we 
allowed it to infiltrate, and we measured what happened to that 
water. At the end of this experiment, which the initial were 

— occurred — took place over a period of over six moths, the 

— this volume of water, which is equal to ten times what the 



75 
100-year storm event is, which is a storm that would occur with 
an occurrence interval of 100 years, was retained in the upper 
25-30 feet of the unsaturated zone, even though the conditions 
of our test did not allow for evaporation at the land surface 
or use by plants . 

Furthermore, evidence that recharge does not occur, 
or occurs in very, very low amounts at the site, is, we did 
actual age dating of the water immediately below the site using 
carbon-14 and other isotopes, naturally occurring isotopes. 
This age dating showed that the groundwater is at least 17,000 
years old immediately below the site. 

What that means is that it takes at least 17,000 
years, if recharge does occur from the land surface above the 
site, to reach the water table. There's more than adequate 
enough time for tritium, which is the issue of concern, one of 
the issues of concern, to decay to acceptable levels. 

SENATOR PETRIS: Excuse me. 

What distance is that? 

MR. LAPALLA: That's a distance of 650 feet. It's 
— the distance to the water table is between 650 and 700 feet 
at the site. 

SENATOR PETRIS: Is that the only source of that 



water? 



water? 



MR. LAPALLA: The only source of the recharge 

SENATOR PETRIS: No, the samples. 

MR. LAPALLA: The samples that were taken were from 



76 
immediately below the water table, so it's likely that they 
came either from immediately above, or they were transported 
in. 

Even if they were transported in from distant 
places, where — at the valley edges, which is typically where 
recharge does occur in desert basins, the streams flow off the 
mountains. You've all seen that they disappear before they go 
out across bajaras, that's the source of recharge in the desert 
basin. It is not recharge on the floor of the valleys. 

Does that answer your question? 

SENATOR PETRIS: Yes, thank you. 

MR. LAPALLA: The third issue is the explanation 
that has been given by the opponents of the occurrence of 
tritium at the site. 

Tritium was measured at the site because it is a 
naturally occurring, s well as a manmade, isotope. It occurs 
in the atmosphere. It results from cosmic radiation. It also 

occurs in the atmosphere as a result of atmospheric testing 

i 

prior to the cessation of that activity. 

There's a requirement under the licensing 
requirements to document what the background concentrations of 
naturally occurring, or of any occurring radionuclides are at 
sites, and this is why the measurements were taken. 

The measurements were taken by extracting samples 
of soil gas, not soil water, but soil gas out of the zone 
because the conditions are so dry that you cannot extract soil 
moisture out of the — excuse me, the unsaturated zone above 



77 
the water table. 

It ' s also important to note that we tested for 
tritium in the groundwater immediately below the site, and it 
was not detectable at levels that are 1,000 times less than the 
detections levels that are required by EPA and NRC for drinking 
water. 

The levels of detection — the levels of tritium 
that were detected at the site decayed from levels of 
approximately 20 at the land surface, to the detection level at 
100 feet. Even the highest levels that were detected are 
10,000 times less than the U.S. EPA drinking water standard for 
tritium. 

After considering all of the mechanisms and driving 
forces that might drive tritium to depths of 100 feet, 
including looking at recharge from precipitation, the most 
scientifically correct explanation of the information, the 
data that was obtained is simple diffusion downward from the 
land surface. 

Let me explain to you what diffusion is. When 
somebody walks into a room with perfume on, or an after shave 
on, and walks past you, you smell it immediately. That is 
diffusion at work. 

Diffusion occurs when chemicals move from places 
where they ' re highly concentrated to places where they are not 
so highly concentrated. It is a very efficient mechanism for 
moving vapor — chemicals that occur in a vapor state through 
soil, air, and through the atmosphere. 



78 
After evaluating all of the mechanisms at the site 
-- gravity, downward movement of rainfall, and diffusion — the 
best explanation for the observed data at the site is that 
simple diffusion from the highly -- high concentrations in the 
atmosphere down to extinction at 100 feet. This mechanism was 
reviewed by an independent panel that was convened by the State 
Department of Health Services, and that panel concurred that 
that was the most technically and scientifically correct 
explanation. 

Clearly, the observed tritium distribution cannot 
best be explained by the opponents ' position that the only 
explanation was downward percolation of precipitation. In 
fact, the observed tritium distribution supports models of 
moisture movement and occurrence at the site that have been 
used in the license application. 

The third incorrect statement is the correctness of 
models that were used for evaluating the protectiveness of the 
site. Models are required to be used to evaluate these sites 
in the State of California and federal regulations. The models 
that were used for Ward Valley are correct for several reasons. 
They were based on sound scientific principles. They have been 
independently determined to provide accurate answers . They 
have been constructed with site-specific data, and they have 
been tested against site-specific conditions, both under 
expected conditions and under unexpected conditions such as the 
infiltration test that I mentioned, where we applied ten times 
the expected 100-year rainfall. 



79 

The models used are state of the art. They have 
been approved by a wide range of public agencies and interest 
groups, including the California Department of Health Services, 
their technical review consultants, the U.S. EPA, the U.S. 
Geological Survey, and in fact, a recent study performed for 
the Department of Energy by Sandian National Laboratories in 
Albuquerque determined that the model -- the principal model 
that was used for performance evaluation at the Ward Valley 
site was the most accurate models of all the models that they 
tested of moisture migration. 

The correctness of the models is also clearly 
demonstrated by their ability to not only reproduce the 
expected climatic conditions, but as I mentioned, conditions 
under the infiltration that we observed during the infiltration 
test. 

The fourth issue that I would like to correct the 
record for is the discharge of groundwater to the Colorado 
River. The U.S.G.S. reports clearly state that Danby Lake, 
which is located 40 miles from the Ward Valley site, is the 
eventual discharge point for groundwater that occurs in the 
upper part of the valley, and particularly under the Ward 
Valley site. 

Secondly, that report states that a groundwater 
divide occurs between Ward Valley and the valley between Ward 
Valley and the Colorado River, or Vidal Valley. 

In order for groundwater to move out of Ward 
Valley, any groundwater, that groundwater divide would have to 



80 

disappear. And the only way that the U.S.G.S. concluded that 
that could occur is if the Colorado River were entrenched 
several dozens or tens of dozens of feet below its present base 
level, a very unlikely event. 

I appreciate the opportunity to correct the record 
on these technical issues. 

I, too, urge you to proceed with the confirmation 
matter that's before you, independent of the technical issues 
of this site. We feel that we did a sound, scientific job of 
locating an ideal site, a sound scientific and defensible job 
of documenting that that in fact was the case, and that we have 
complied with the requirements of the State of California for 
siting such a site. 

Thank you, and I ' d be glad to answer any questions. 

CHAIRMAN ROBERTI: Thank you, Mr. Lapalla. There 
are no questions, but thank you for your testimony. 

The next witness . 

If the witnesses could keep the testimony 
relatively brief, and I know it's technical and important. 

MR. GAYNOR: Mr. Chairman, Members of the 
Committee, thank you for allowing us this opportunity. 

My name is Ronald Gaynor. I am Senior Vice 
President of U.S. Ecology, the company selected to develop the 
Ward Valley disposal facility. With me is Steve Romano, who is 
'vice President of U.S. Ecology. 

In 1983, the Legislature gave the Department of 
iHealth Services a difficult and very important job. They were 



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required to develop regulations for low level radioactive waste 
disposal and find a private developer to establish a disposal 
facility for California. 

In the last eight years, the Department has 
performed that task admirably. It has developed a program that 
has resulted in the selection of an excellent site and a sound 
technology with the full involvement of all the effected 
public . 

To hold Secretary Gould's confirmation hostage as a 
result of the Department's progress would be a travesty. 
California's approach has been hailed nationally as the model 
process for involving the public, and is being duplicated in 
other states. 

The Department continually receives high marks from 
the Nuclear Regulatory Commission, which audits its program on 
an annual basis. The Department has consistently taken the 
conservative and cautious approach in protecting public health 
and the environment in this regard. In technical matters, they 
have hired nationally recognized experts to augment their 
qualified staff for the licensing review support. Where there 
has been technical controversy, they have arranged expert 
committees which involved all interested parties, both public 

jiparties and state and federal agencies to provide independent 

(input to the process. 

They have also gone the extra mile in public 

ji involvement . In addition to hearings on the Draft 
Environmental Impact Report and the license, the Department 



82 
held hearings on the Final Environmental Impact Report. These 
latter hearings were not required and are not commonly held. 
Public comment periods were extended beyond legal requirements 
in response to public requests to allow additional time for the 
submittal of written evidence. Public documents rooms were 
established throughout the state to provide interested citizens 
with an opportunity to review licensing documents and 
environmental analyses. 

In fact, project opponents have had full 
opportunity to review all of the licensing information and to 
enter their own evidence into the record, and in return, the 
Department has responded and addressed all of the issues that 
have been raised without regard to their source or their 
significance. 

Unfortunately, this project has become the focus of 
a nationally coordinated, aggressive, misinformation campaign. 
You've heard from a number of other speakers today who have 
corrected some of those distortions put forward by the 
opponents to any California low level radioactive waste 
disposal facility. 

I would like to clarify some additional 
misinformation related to the waste which requires disposal and 
where it comes from. 

U.S. Ecology is the licensed operator of the 
facilities in Nevada and Washington, and as such, U.S. Ecology 
is the legal custodian of all of the manifest shipping papers 
for the waste from California and other states that goes to 



83 



those facilities. State regulators in Washington and Nevada 
inspect all of those shipments and verify the accuracy of the 
manifests. This information is both reliable and available to 
appropriate regulatory agencies or the public. 

It is clear that long-lived radioactive waste is 
produced by non-utility waste producers as well as power 
plants. This long-lived waste does not just come from nuclear 
power plants, as the project's opponents have claimed. Non- 
power plant examples include: carbon-14 with a half-life of 
over 5,000 years; radium-226 with a half-life of 1600 years; 
and other isotopes that you've heard mentioned today. 

Just this week, we received a request to assist in 
the disposal of amoresium-241 that has a half-life of 433 
years. The requester is a major Hollywood motion picture 
company who is decommissioning some of their smoke detectors. 
The amoresium is an element that is within these smoke 
detectors . 

U.S. Ecology has disposed of California's low level 
radioactive waste for 30 years. That anniversary is this year. 
The Beatty facility opened in October of 1962. At the end of 
this year, however, we will no longer be able to dispose of 
California's waste, since federal law and the states of 
Washington and Nevada will no longer allow it. 

The waste we now take from California's 
universities, hospitals, pharmaceutical and research companies, 
and nuclear power plants, will begin to pile up at the more 
than 500 locations throughout California where this waste is 






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produced. There will be no place to ship this waste after 
January 1st, 1993. 

If California's citizens are to be protected from 
500 many low level radioactive waste sites in urban areas all 
over this state, the development of the Ward Valley facility is 
critical . 

Lawsuits seeking judicial review of the 
Department's licensing decision are inevitable. These will 
cause additional delay in the waste disposal facility's 
([development . 

Holding an unnecessary, not legally required, 
adjudicatory hearing will not lessen the chance of delays due 
to court challenges. If these hearings are conducted, DHS 
still has the responsibility for making the licensing decision, 
and the results of that decision, whatever it is, is still 
subject to judicial review. 

Waste producers will almost certainly be storing 
their waste on site in hundreds of urban locations for a year 
or more already because of the late date. If adjudicatory 
hearings are now to be held, the project's delays will be 
extended by whatever time is required for those hearings. 

California now has a low level radioactive waste 
disposal program which meets the spirit, the intent, and the 
letter of the law as adopted by this Legislature. The 
! j Department of Health Services has done a most credible job in 
'providing the regulatory framework for site selection, safety, 
I management, and oversight. 



85 

This project should not needlessly be delayed by 
unnecessary adjudicatory hearings which are not required either 
by state or federal law, including the NRC and its procedures. 
This project, which is today a model for the nation, has been 
under public scrutiny for eight years. Secretary Gould is 
carrying out the program mandated by the Legislature and 
successfully implemented by his predecessors. 

You have relied on his judgment and integrity in 
the past, and you know him to be an outstanding government 
official. We respectfully urge that you recommend his 
appointment be confirmed by the full Senate. 

Thank you, and I'd be happy to answer any 
questions . 

CHAIRMAN ROBERTI: Thank you very much. 

Any further questions? 

Next witness. 

DR. PASTERNAK: Chairman Roberti, Members of the 
Committee, my name is Dr. Alan Pasternak. I'm Technical 
Director for the CAL Radioactive Management Forum. 

The Forum is an association of corporations and 
institutions in California and other states of the Southern 
Compact that use radioactive materials and generate low level 
radioactive waste. You've already heard from some of the other 
members — Dr. Lull is a member of our Board; the California 
Medical Association is a member of the CAL RAD Forum; so is 
Gen-Probe; General Electric; and the Southern California Health 
Physics Society; Cedars Sinai; Kyron -- so, you've heard from 



86 
some of our members on issues close to them. 

I would like to touch briefly on three issues that 
have not been put to the public fore. One has to do with 
liability and the applicability of the liability issue in the 
comprehensive environmental response to the federal act. 
Secondly, I'd like to discuss briefly the appropriateness of 
the requested adjudicatory hearing. And finally, another issue 
which has been discussed is the impact of the current 
litigation before the United States Supreme Court. 

We believe it is very unlikely that the issue of 
liability connected to an issue of — connected to some sort of 
iresponse at the Ward Valley facility would necessitate adjudi- 
catory hearing. You've heard testimony on the qualifications 
of the proposed operator and the characteristics of the site. 

In addition, the regulations adopted, the 
regulations of the Department of Health Services, speak 
directly to issues which have caused problems at other sites. 
Specifically, the requirement for waste solidification and 
other waste form requirements, as well as the regulation of 
long-term monitoring of the site, and a requirement that money 
be set aside to accomplish that, will ensure that the site 
operates safely even after it is closed and decommissioned. 

Nevertheless, charges have been made that the 
disposers of low level radioactive waste, unlike the disposers 
of chemical hazardous wastes, will somehow no longer be 
liable for that waste, will be off the hook, once their waste 
is disposed of. This charge was first made by a gentleman 



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employed by the United States Environmental Protection Agency 
at a meeting in Los Angeles last June, was picked up by the Los 
Angeles Times , and then picked up by the Controller, Gray 



Davis . 

We found out from a letter from the EPA in response 
to an inquiry that this gentleman has no responsibilities at 
EPA for low level waste disposal, and he's speaking as a 
private citizen, and that his views do not necessarily 
represent those of the Agency. 

Furthermore, we have communicated to the Controller 
and others that the charge is incorrect; that under CERCLA, 
disposers of low level radioactive waste are indeed on the 
hook. There are four categories that CERCLA applies to. It 
does apply to low level waste facilities, and it applies to 
present owners and operators of the facility, past owners and 
operators, waste generators, and waste transporters. 

One of the main points of this — of this law, is 
that the State of California, as a disposer of waste through 
the University, through the State University system and other 
state agencies, is potentially liable in the unlikely event of 
"some kind of accident at Beatty, Nevada, or Ridgeland, 
jjwashington. The State of California today is potentially 

liable. People have claimed that the State of California is 

1 

j liable at Ward Valley. You should understand that the state is 
currently liable in the unlikely event of an accident at those 
places . 

So, the situation really doesn't change that much 



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in terms of liability, but the main point I want to underscore 
is that, yes, indeed, disposers of radioactive waste are 
potentially on the hook under federal law. 

The point we had — we communicated to the 
Controller last summer, I did not ever get a response from him 
other than his staff, who felt that we were wrong, there is now 
a letter form the Chief Counsel of the Environmental Protection 
Agency to Administrator Riley confirming that yes, in fact, 
CERCLA does apply to low level radioactive waste disposal 
facilities . 

So, we are in the same boat as disposers of any 
other kind of waste. In addition to all the other reasons that 
you have heard for wanting a safe disposal facility today, that 
is just one more. 

On the subject of adjudicatory hearings, I sent a 
letter to the Chairman and Members on Monday, April 6, attached 
to which was a letter to me from our special counsel on the 
subject of adjudicatory hearings. If you've had a chance to 
look at it, you'd know that her conclusion, and she's a partner 
with the law firm of Graham and James in San Francisco, in 
their Environmental Law Department, her conclusion is that not 
only are adjudicatory hearings not required, but under state 
law, the Department of Health Services is not authorized to 
call for adjudicatory hearings. 

I think it might be helpful in looking at the total 
picture to consider what has been done by way of public 
meetings and public input. And I would underscore that what 



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has been done is more appropriate to a technical issue, to a 
technical forum, than are adjudicatory hearings. 

Now, I want to be cautious here, and I know that 
some of you are attorneys, and I don't want to offend anyone. 

But it is my belief that the way the Department has 
gone about it, in a non-ad judicatory approach, is far more 
appropriate to the kinds of issues that are involved in 
siting, and developing, and operating a low level radioactive 
waste disposal facility. 

First, public meetings were held in desert 
communities beginning in 1983 and "84. The license application 
was not filed until 1989. So, five or six years prior to the 
filing of the license application, the public was being 
informed, the public was getting information about this 
project. 

I mention that partially because it's been 17 years 
since I appeared before this Committee. At that time, it was 
my confirmation, along with the other members of the original 
Energy Commission who had been appointed by Governor Jerry 
Brown. As you know, that Commission has a reputation for very 
open processes and open — open hearings. But there is nothing 
in the Warren-Alquist Act, and there's nothing in Energy 
Commission practice, that calls for public hearings and public 
meetings four and five years in advance of the filing of a 
formal application. The Energy Commission's process does not 
begin until that application is filed. 

Secondly, the selection of the site was undertaken 



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with the assistance of a Citizen's Advisory Committee, composed 
of representatives of: the Boards of Supervisors of three 
counties — Riverside, Inyo, and San Bernardino; 
representatives of the Leagues of Women Voter Chapters in each 
of those three counties; the Sierra Club; the Native American 
Heritage Commission; CAL RAD Forum had one seat on the 
Citizen's Advisory Committee. So, not only was this a matter 
of public information and communication, but of public 
involvement as well. 

A third point that I urge you to keep in mind is 
that there was a hearing on the Final Environmental Impact 
Report. To my knowledge, that's unprecedented. Normally there 
are hearings on Draft Environmental Impact Reports. In this 
case, there were two hearings: there was a hearing both on the 
Draft Environmental Impact Report and the Final Environmental 
Impact Report. 

That hearing — the hearing on the Final was held 
last July, and the formal comment period closed August 5th. 
And it's my understanding that the Department -- one of the 
chores, and one of the reasons that the decision has been 
delayed is that they've been responding to the comments that 
came in on the Final Environmental Impact Report. 

And finally, and not least, in cataloging the 
things that have been done that go beyond the requirements, and 
that should more than compensate — for those of you who think 
that adjudicatory hearings are the right way to approach this, 
I would urge you to consider these items as more than 



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compensating for that fact, setting the legal issue of the 
Department's lack of authority aside. In a couple of instances 
where tough technical issues came up, the Department 
established ad hoc committees that involved both local agencies 
and representatives of national federal agencies. One of those 
you've already heard referred to today, the Vado Zone 
Monitoring Committee that met in Sacramento for two full days 
last February to consider issues that had been raised — 
incorrectly, in our view, and correctly, admittedly, by those 
agencies eventually -- concerning the use and nonuse of liners. 
Liners are virtually prohibited by the NRC . What should the 
design of the monitoring system be. And at the outcome of 
those two days of meetings by experts, meetings open to the 
public, a revised monitoring system was devised. 

So my point is that the process that has been used 
is the one appropriate to technical issues. It's been praised 
by the League of Women Voters on their comments on the Draft 
Environmental Impact Report. 

With respect to adjudicatory hearings, I could say 
a lot of things. I could refer you to our counsel's paper, 
which you have. The view of the, obviously, of the Department 
of Health Services ' s own counsel against adjudicatory hearings, 
that it would have held up -- but I underscore this, and then 
I'll move on from that subject: three judges in the State of 
California have looked at the question of adjudicatory hearings 
in connection with material licenses, licenses for radioactive 
materials. In one case, this case. 



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The first was the case Desert Pass Action Group vs. 
the Department of Health Services , a case a few years ago 



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involving the establishment by Westinghouse in Banning, in 
Riverside County, of a nuclear services facility. The 

Department did not require an adjudicatory hearing. They were 

i 

taken to court, and both the trial court and the Court of 
Appeals determined that the Department was right, that an 
adjudicatory hearing was not required for that materials 
license. 

And just this past December in this very case, the 
Redwood Alliance and others brought suit against the Department 
and asked for a temporary restraining order until their 
question on adjudicatory hearings could be heard. The request 
if or a temporary restraining order was denied, and I understand 
| there's a written opinion in that case, but the basis for the 
judge's denial was that the plaintiffs were unlikely to prevail 
on the merits . 

So, this has been looked at, the very issue 
that seems to be before you today, has been looked at by the 
courts . 

Finally, some have argued that since this issue, 
the issue of the constitutionality of the federal act, is 
before the United States Supreme Court, we should stop, wait, 
and see what it says . 

I think that the point to keep in mind is that the 
court cannot provide disposal capacity. Whether the court 
lupholds the federal act in its entirety, or as is likely, 



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partially, or as is very unlikely, overturns it all, will not 
provide the State of California disposal capacity. 

Just within the last few days, the Governor of 
JNevada has declared that if the act is overturned in its 
entirety, he will immediately close the Nevada facility. We 
can expect that the State of Washington and the State of South 
Carolina will do likewise. That's what they did in '79; that's 
how they got the federal act started in the first place. 

It's hard to believe that this mandate has been 
before the states for 12 years, but that's -- that's where we 
are. The original deadline was 1986, when this Legislature 
responded in 1983 and declared, in the intent language of 
Senate Bill 342, that it wanted the expeditious establishment 
-- the expeditious establishment — of a disposal facility. In 
'85, we were granted a reprieve of seven years. The deadline 
is now next January, and I don't think anyone really believes 
that the Congress is going to extend that deadline again. I 
don't think the three sited states would stand for it. 

My expectation, and I'm not an attorney, but my 
expectation is that the court will sustain at least the compact 
structure. So, to come back to the issue of liability, you 
would have to look at what the Southwestern Compact says, 
Assembly Bill 1000, Assemblyman Peace, 1987, ratified by this 
Legislature, ratified by the Legislature of three other states, 
and granted consent by the Congress the following year, 1988. 
California as the host state is required to cause a regional 
disposal facility to be developed in a timely basis. That is 



94 
our statutory obligation. 

The only fair interpretation of "timely basis" is 
January 1, 1983 [sic]. So, whatever the court does with the 
1996 take title provision — and many attorneys are betting 
they'll throw that out -- as long as the compact system is left 
in place, and it probably will be, California is faced with 
that statutory obligation. We don't want to see California 
default, or default beyond that date any longer than is now 
absolutely necessary. 

I think the holding of an adjudicatory hearing will 
add time in addition to whatever litigation is going to come 
down. 

CHAIRMAN ROBERTI: I appreciate your point, and it 
is a major point. 

But there is an argument that the constitutional 
requirement is unconstitutional — rather, the statutory 
requirement is unconstitutional . 

DR. PASTERNAK: The statutory requirement for what, 
Senator? 

CHAIRMAN ROBERTI: That the state has to provide 
for a disposal site. 

DR. PASTERNAK: The challenge of New York is very 
broad. 

CHAIRMAN ROBERTI: Which is a challenge that has 
been joined by our Attorney General as well. 

DR. PASTERNAK: I — I must respectfully differ. 
My understanding, and it's based on reading the brief 



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of Ohio, which is the brief that New York — the brief that 



California has joined, is that the focus of that attack is on 
take title, which is a 1996 provision. 

What I'm saying is that if the court leaves in 
place the compact structure, our compact — that cannot be 
challenged on the basis because it's a state law -- our 



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compact requires California to cause a regional disposal 
facility to be developed by January 1, 1993. 

You've already heard that our Governor has already 
heard from the Governor or Arizona, who has pointed to the 
potential liability that the State of California faces if it 
cannot provide disposal capacity for waste generators in this 
state. And I think, speaking for generators both in the other 
states of the Southwestern Compact as well as California, that 
is the view that we would take. That California, under the 
provisions of the Southwestern Compact, irrespective of taking 
title in '96, California has a statutory obligation to provide 
disposal capacity by this coming January. 

I can only repeat what others have said, that the 
concerns that you have all expressed for safety weigh on the 
side of what the Legislature asked for in 1983: expeditious 
development of this disposal facility. That is the safest 
means, the safest means, of dealing with low level waste that 
is so important to our economy and our institutional life. 

We urge you to consider and approve the 
confirmation of Russell Gould separate and apart from issues 
related to Ward Valley. 



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CHAIRMAN ROBERTI: Thank you very much. 
SENATOR MELLO: Mr. Chairman. 
CHAIRMAN ROBERTI: Senator Mello. 
SENATOR MELLO: I'll try to respond to your 
statement. You're suggesting that the U.S. Supreme Court will 
uphold the law, as I understood your statement. 

DR. PASTERNAK: Most of it. I think they'll uphold 
most of it. 

SENATOR MELLO: The action of the court on May 
30th, as listed in the New York Times of March 31st, which only 
a week ago, in two short sentences: 

"The Supreme Court today gave a 
sympathetic hearing to a 
constitutional attack on federal 
law that requires states to take 
responsibility for disposing of 
their low level radioactive wastes 
within their borders . The argument 
and lawsuit brought by New York 
State against the federal government 
raised the possibility not only that 
the court might declare the 1985 law 
unconstitutional, but also that it 
could do so in a way that gives 
states new tools for resisting 
unwanted federal regulation." 
DR. PASTERNAK: And that could be accomplished by 



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striking down the take title provision. 

SENATOR MELLO: But this differs from your 
statement that the court will uphold. 

DR. PASTERNAK: Well, I think some of the 
statements — the leading assumption in that article was that 
the states are now going to be required to take responsibility. 
This has always been a state responsibility, disposal of low 
level waste. The sites that are operating in Washington, 
SNevada and South Carolina are operated by private entities 
'under state regulation. That won't change. 

SENATOR MELLO: But they're referring to a 1985 
law. 

DR. PASTERNAK: Pardon? 

SENATOR MELLO: If the U.S. Supreme Court overturns 
a 1985 federal law, then we're back to where we are right now, 
that the states can contract with other states for disposal of 
their low level radioactive waste. 

DR. PASTERNAK: No, I think, Senator, that what 
will happen, if the entire law is overturned, I think the three 
sited states will do just what they did in 1979 and '80 to kick 
all this off: they will shut their sites down, to themselves 
as well as everybody else. They will provoke a new crisis. 

And as I say, my bet is that the court will — if 
it's going to strike anything down, it will strike down the 
1996 take title provision, which means the states have to take 
title. But I think they will leave the compact system in 
place, because the compact system is a carrot and a stick for 



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j:the states to develop their own facilities. 



And then you have to look to the provisions of our 
Southwestern Compact, which were approved by this Legislature, 
which requires California, quote: "To cause a regional 
disposal facility to be developed on a timely basis." That is 
now both state and federal law. 

SENATOR MELLO: I think the New York Times differs 
with your statement quite a bit, so I just wanted to point that 
tout. 

DR. PASTERNAK: I've probably been following this 
longer than the reporter for the New York Times ♦ 

CHAIRMAN ROBERTI: Thank you, Senator. 

Thank you very much. 

DR. PASTERNAK: Thank you, Senator. 

CHAIRMAN ROBERTI: Next witness, please. 

No more? How can that be? 

Ms. Gluckstein, who testified three weeks ago, 
would like to have an opportunity to rebut some of the 
observations . 

That is fine with me, but it's really the decision 
of the Committee. Maybe two minutes for Ms. Gluckstein, and 
then Mr. Gould can make his final response. 

Is there any objection to that? 

SENATOR MELLO: In fact, Mr. Chairman, I think 
we've heard today from all the proponents, and we heard mainly 
from the opponents the time before. 

But I think there are some people here that would 



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I like to testify, , and we should just set a short period of time 
so that Ms. Gluckstein and maybe — 

CHAIRMAN ROBERTI : Let ' s say one person to be given 
an opportunity to refresh our memories on the issues, but there 
comes a point, I think, when all has been said, has been said. 

So, Ms. Gluckstein, I think, was the lead witness 
three weeks ago . 

Unless you have somebody else -- 

SENATOR CRAVEN: Is there a time limit? 

CHAIRMAN ROBERTI: I would say three minutes for 
Ms. Gluckstein. 

MS. GLUCKSTEIN: Chairman Robert i, I would 
actually like to introduce our expert witness — 

CHAIRMAN ROBERTI: Please do that, yes. 

MS. GLUCKSTEIN: — Dan Hirsch, and I would also 
like to say on behalf of the numerous organizations that I 
represent -- the Hollywood Women's Political Committee, Women 
For, National Council of Jewish Women, Physicians for Social 
Responsibility, et cetera — we would like to introduce Dan 
Hirsch. 

CHAIRMAN ROBERTI: Thank you, Ms. Gluckstein. 

Mr. Hirsch. 

MR. HIRSCH: I obviously cannot in a couple of 
minutes rebut what was said over many, many hours, and I think 
that is perhaps the fundamental message that needs to be gotten 
across . 

I suspect that you, after hours of hearing the 



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testimony, are somewhat confused about the facts of the site. 
Does it connect to the Colorado River? You've heard one 
witness say it doesn't. I have a U.S. Geological Survey that 
say it drains to the Colorado River, is an open basin. 

You've heard them say that the tritium migration 

lean be explained; it's not a problem. We have in the audience 

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with us Dr. Robert Cornog, who, in 1939, with the Nobel 

Laureate Louis Alvarez, discovered tritium. And he and a 

number of our other colleagues are concerned about that tritium 

finding and believe it could represent a very serious, very 

serious indication of hazard at the site. 

I don't believe that these complicated issues are 
ones which have been resolved to date, and I don't believe that 
jit would be morally appropriate for us to go forward with this 
iproject until those issues are resolved. 

Now, you've heard it said that this is an issue 
ibeing brought to your attention at the very last moment, that 
where were these people earlier. 

I want you to understand, the reason you're stuck 

with this difficult choice is because we, over several years, 

■have repeatedly asked for adjudicatory hearings. My first 

Irequest was two years ago. I got no response. I submitted 

additional requests, got no response. Asked them where I could 

!>find the procedures, was given a run-around. There must be 
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half a dozen at least exchanges of correspondence formally 

requesting a hearing, and that's been denied. 

So, you're stuck in the situation where you have to 



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be making a decision whether DHS ' s failure to provide a full 

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hearing beforehand, whether their failure should be rewarded in 
a way that permits them to go forward with a potentially unsafe 
facility. 

I want to give you two anecdotes about the 
(potential alternative as to what we face. And one is from Los 
Angeles, and one is from your district, San Luis Obispo. 

In Los Angeles some years ago, the Department of 

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water and Power wanted to build a nuclear reactor in a place in 

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j^lalibu called Corral Canyon. And Bob Hope, the most -- least 

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likely anti-nuclear person you can imagine, intervened, and hew 
as able to hire very good technical people who were concerned 
that there was an earthquake fault beneath the site. Those 
people testified in an adjudicatory hearing; the other side 
said, "No, it can't possibly be so," just the way you've heard 
all day, those claims. The adjudicatory board said, "Well, 
this is serious. We'd better find out," and ordered them to go 



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there. In the midst of the hearing, they found, yes, indeed, 
there were faults, and the project was abandoned. 

On the other side of it is Diablo Canyon. In 1968, 
there was a hearing, a truncated hearing. The intervenors said 
that they wanted to put on witnesses to show that there was an 
off-shore fault. That was prohibited by the hearing officer, 
opposed by the counsel for the applicant. They got the license 
without any testimony on off-shore faults. A few years later, 
we discovered there was such a fault, and it took billions of 



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dollars, as you say, of retrofitting. 

Now, those are two choices. There's a third 
choice: to go forward with a project like Ward Valley, where 
there are eminent experts on the other side who believe there 
are serious unresolved questions, and to have no adjudicatory 
jhearing at all, no discovery, no opportunity for cross 
examination, no decision on the record. And what may happen if 
[we do that is an environmental disaster later that, frankly, it 
is the responsibility of DHS to have done this right. They 
'have not done it right. And right now, the responsibility is 
|in your hands . 

You have to weigh the arguments made, and most of 
them, I feel, are quite inflammatory about wholesale migration 
out of the state if a dump doesn't open. I must remind you 
that in 1980, the bill was first written. They had to come up 
with a dump by 1985. No one did. The Act was rewritten then. 

It is -- there are 39 states required to come up 
with these compact dump sites. We are farther ahead than any 
of them. It's incomprehensible that 80 percent of the 
'country's medicine is going to shut down. 

CHAIRMAN ROBERTI: Thank you, Mr. Hirsch. 

MR. HIRSCH: If I could — one last comment, if I 
may . 

Camus once said that what is expected of people of 
conscience is they speak out loud and clear so that not a 

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doubt, not the slightest doubt, can rise in the heart of the 
simplest person. 



103 

That's what I ask you to do: to speak out loud and 
clear that we need to follow a process that safeguards future 
generations, that we don't make a mistake that others live to 
regret . 

Thank you. 

CHAIRMAN ROBERTI: Mr. Gould said something earlier 
in the hearing, and that is, you said you would agree to an 
adjudicatory hearing. You just didn't want an interminable 
one. 

So, I'm trying to figure out if we are approaching 
a meeting of the minds here or not. 

I guess an adjudicatory hearing does mean an 
adjudicatory hearing. Are you suggesting that maybe we limit 
the number of parties? 

MR. GOULD: Yeah, Senator. I think those are some 
of the features that can help put some control on the process 
so we can get a full exploration of the issues without having 
it be, as you call it, an interminable process. 

And I think Senator Mello referred to the same 
thing. There may be a way to limit some of the number of 
participants . 

We do think that a process with an administrative 
law judge presiding, with cross examination, but with some 
limitation on the number of participating parties so that we 
have some control of the process in terms of its, you know, 
willingness to explore all the issues, but not interminable, is 
appropriate . 



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CHAIRMAN ROBERTI: Maybe Mr. Hirsch, why don't you 
come on up again. 

SENATOR PETRIS: I have a question or two when you 
finish. 

CHAIRMAN ROBERTI: Right. 

If we could work out an adjudicatory hearing in 
which the number of parties were consolidated — 

MR. HIRSCH: That's not a problem. In fact, that's 
the NRC procedure. 

You have parties submit applications. And if they 
meet the criteria, they're accepted, and there is 
consolidation . 

CHAIRMAN ROBERTI: I think the Administration does 
make a good case to this extent, that if they prove their case, 
they shouldn't have to fight it out with a succession of 
interminable groups that will come out. 

MR. HIRSCH: There's a limited number of resources 
available for the groups anyway. It's likely there will be a 
consolidation of those groups. This is standard practice. 
That's a non-issue. 

CHAIRMAN ROBERTI: My suggestion is that between — 
and Senator Petris is going to make some remarks, too — but my 
suggestion is that between now and before we adjourn tomorrow 
afternoon or morning, that we try to work out some adjudicatory 
process which does put some kind of limitations on the number 
of parties that can be heard, so that the process is, at least 
time-wise, efficient. 



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105 

None of us here want to vote against Mr. Gould. In 
all the discussion about Ward Valley, we have to also take into 
consideration the long list of people in the health field who 
are here, whose clients and concerns we also have an obligation 
to, and I'm not saying that Ward Valley isn't a health issue, 
but people know what I mean, and who feel that Mr. Gould is 
going to be an outstanding Secretary. 

At the same time, radioactive waste disposal is one 
for the ages . 

So, my suggestion is we try to work something out, 
because we want to vote for you. 

Senator Petris. 

SENATOR PETRIS: Well, I'd like to see us do that, 
too, providing we get a good hearing. We could have some 
constraints . 

But I was going to ask if you have with you a 
medical expert who can answer. I mean, some of this testimony 
scared the daylights out of me. 

I'd like to get -- if there's another side to 
Ipolicies, procedures, facts, without taking too long, Mr. 
Chairman, I think we ought to hear it, and I would ask that the 
points that have been made should be answered. If not all of 
them, certainly the substantial ones. 

Can you call somebody to do that? 

MR. HIRSCH: I can try, and perhaps my colleague, 
Dr. Cornog, can join me. 

I know you don't want to take much time, and in the 



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106 
three minutes I had, it was very difficult to respond to all of 
that . 

Why don't I try now, and we'll see if others can 
help me. 

CHAIRMAN ROBERTI: Is that Dr. Cornog? 

MR. HIRSCH: Yes. 

CHAIRMAN ROBERTI: Please come forward, Doctor. 

MR. HIRSCH: To begin, we must have a sense of the 
scope of the problem. The medical wastes represent by activity 
about one-tenth of one percent of what is to go to Ward Valley, 
with the exception of two companies who should be recapturing 
their material and re-using it. With those exceptions, the 
bulk of the wastes are nuclear power plant wastes, long-life 
material, very much of a different order of magnitude. 

If the waste dump were designed for the medical 
community, that one-tenth of one percent, you wouldn't be 
having this hearing. All the people came to tell you about why 
they want to have some kind of disposal facility, none of us 
oppose that. 

Our concern is these huge quantities of reactor 
wastes that are long-lived, and also this large quantity of 
tritium from these two companies that should be recaptured. 

Secondly, it is true that there are nonradioactive 
alternatives for some uses. It's also true that there remain 
needs for radioactive uses in medicine and science. This is 
quite true. The amounts are very small compared to the overall 
waste stream. 



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107 

What else particularly was — 

SENATOR PETRIS: Well, on the medical side, there's 
the problem of storage of the waste from the hospitals and the 
private companies that are doing the manufacturing and 
research, which necessitate the use of these materials. 
Without our action, there will be a large number of storage 
centers springing up in urban areas that will be very unsafe. 

MR. HIRSCH: I thought that was a rather 
disingenuous argument. 

There are radioactive materials stored at those 
sties today, this moment. They store them for use. They use 
them, and they store them as waste before they ship them out. 

We've been told repeatedly that that is safe. 
They're now telling you that if they have to store it for three 
months, and moving that up to a year or a year and a half for 
an adjudicatory hearing, that that produces some unique safety 
hazard. 

If it's safe at present, it would be safe to extend 
that period for just a few additional months. I think that's 
quite a red herring. 

In addition, the state has begun to make 
arrangements about temporary storage in the interim while the 
process remains at a couple of trans-shipment points. 

So again, it's -- everytime someone is worried 
about a health and safety regulation, they come to you and tell 
you they will migrate out of the state if you put it into 
effect. And I think at some point, one has to really say that 



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108 

there is an ethical issue involved, and one shouldn't be making 
these kind of fantastic claims. 

As I say, the entire country is under an obligation 
to come up with these dump sites, and we are farther ahead than 
everyone. So, it's just incomprehensible that — 

SENATOR PETRIS: Are the other, those 39 states, 
[operating under the same time requirement that we are? 

MR. HIRSCH: Yes, yes, and they're way behind us. 
They're years behind us. 

SENATOR PETRIS: Years behind? 

MR. HIRSCH: Yeah, almost all of them years behind 
us . 

So, what's going to happen next year is what 
happened in '85. They will find that no one has met the 
deadline. This summer, the Act will probably be declared in 
part unconstitutional, and the nation will have to re-assess 
the policy of radioactive waste disposal then, and hopefully, a 
more creative solution will occur than forcing it on the states 
and mixing these huge power reactor wastes with these tiny 
medical wastes. 

SENATOR PETRIS: You think those are two separate 
things in scope. 

MR. HIRSCH: It is quite clear that there are a few 
isotopes that cross over, but there are very simple creative 
solutions for those that slip over. 

I, frankly, think that if the biomedical community 
were primarily concerned about disposal of their wastes, they'd 



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be working with us on solutions which we believe exist for 
their waste. And I think the hang-up is these huge amounts of 
power plant wastes which are a different order of magnitude of 
risk. 

SENATOR PETRIS: That's your first concern? 

MR. HIRSCH: Again, Cedars Sinai testified here 
they produced two curies of radioactive waste over the last 
four years. During this same period, San Onofre produced 6,000 
curies . The wastes that were produced from Cedars Sinai by and 
large were of less toxicity than the wastes, even curie for 
curie, than the wastes from San Onofre. 

No one here is upset about Cedars Sinai's waste, or 
Gen-Probe, or any of the others that testified. Their fear is 
dumping huge quantities of reactor wastes that are plutonium — 
24,000-year half life; strontium and cesium with 30-year half 
lives, meaning hazardous for about 600 years, in unlined pits 
with -- by the way, a lot of disingenuous arguments about why 
liners aren't necessary -- in a place where there are data 
suggesting that migration rate may be quite rapid down to 
groundwater . 

If indeed -- 

SENATOR PETRIS: Not 17,000 years? 

MR. HIRSCH: That's why the tritium findings are so 
important. They claim that it will take thousands to tens of 
thousands of years for the radioactive material to migrate to 
600 feet to groundwater. 

The Regional Water Quality Control Board and the 



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110 
U.S. EPA said, "Hold it. You've already found tritium 
migration 100 feet, and those data suggest that it is migrating 
at rates of years or decades, not thousands of years. Explain 
this contradiction." 

And that contradiction has not been resolved. 

The contractor for U.S. Ecology has acclaimed, 
"Don't worry. It's gas phased diffusion," which we think 
doesn't help them very much. It's obviously still moving fast. 

But we also believe that that's not a proven — 
that's not proven at all. 

So, you have them having a model saying 10,000 
years, and data saying a few years. And if the model's right, 
it's safe. And if the data are right, it's dangerous. And you 
aren't going to know without an adjudicatory hearing. 

Bob, maybe you want to add something on that? 

DR. CORNOG: No, I think you expressed it well. 

SENATOR PETRIS: Well, Doctor, did you have any 
comments on any other part of the medical? 

DR. CORNOG: I would like to emphasize two things. 
That the magnitude of the waste from the power plants and so on 
is thousands of times more lethal, more amounts, than that from 
the medical community. 

And I think that the attempt, apparent attempt, to 
link the medical dangers with those of the power plant dangers 
can be confusing at times. 

SENATOR PETRIS: Thank you. 

MR. HIRSCH: Is there anything else we could help 



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111 
clarify? 

SENATOR PETRIS: Yeah, I had two or three other 
iquestions, but they've escaped me. They're mostly on the 
medical part: medical research grinding to a halt. 

MR. HIRSCH: Let me tell you — 

SENATOR PETRIS: With all these people dying, the 
AIDS patients. Of course, they're dying anyway, but we don't 
want it to be any faster than we can prevent it from being. 

MR. HIRSCH: Two points. 

One is that I've been, and you have been, through 
situations, too. I've been through all these nuclear power 
hearings, where the utilities come in and say, "If we have 
hearings and have to deal with these safety issues, we'll never 
get these plants built, and so there'll be blackouts all over 
parts of the country. " 

And they hold the hearings . They find safety 
problems, and they resolve the safety problems, and no 
blackouts . 

So, we've heard these claims over and over and over 
again. 

SENATOR PETRIS: We have, too. 

MR. HIRSCH: Even if it were true, which I do not 
believe it's true. I don't believe this will affect medical 
care in the State of California in January of '93 in any 
fashion or in any of those other 38 states. I -- that's just 
not in the cards . 

No one is complying with that law. They're all way 



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behind us, for good reason. 

SENATOR PETRIS: That the January '93 deadline 
applies to the other 39 states? 

MR. HIRSCH: Quite right. 

SENATOR PETRIS: And a few years behind us, they 
ain't gonna make it. 

MR. HIRSCH: We can't make it even if they gave the 
jlicense today. So, no state is going to meet the deadline. 

SENATOR PETRIS: What happens when the deadline 
arrives? 

MR. HIRSCH: What happens is, the Act is re-opened, 
and those dump sites that are currently in existence continue 
to receive wastes until some kind of reasonable settlement is 
resolved. For example, there is an adjudicatory hearing here 
ithat determines whether the site is safe or not. 

It's what happened in '85. It already has 
happened. It will happen again. 

And there may well be, come summer, a finding a 

unconstitutionality . 

I 

But the second point I want to make is really 
ijcritical. You're dealing with two kinds of risks to public 
health. Claims, which I do not believe are correct, that on — 
that they'll have to do a little bit of increased storage, and 
Jthat that may impact research. I don't believe it's correct, 
but even if it were for a moment, I want you to weigh that 
against the health risks of going ahead with the project, 
idumping huge quantities of extremely toxic, long-lived 



113 
materials above a pristine aquifer close to the Colorado River. 

You have to weigh one set of health risks against 
another, and in the end, do something that is just. 

SENATOR PETRIS: That geological report to which 
you referred, which year was that published? 

MR. HIRSCH: In 1984, and it says that Ward Valley 
is an open basin which drains to the Colorado River. I will 
give you a copy. 

Thank you. 

CHAIRMAN ROBERTI: Senator Craven was signaling me 
that he thinks time is up. 

SENATOR CRAVEN: You should be thankful I'm not 
asking to speak. 

[Laughter. ] 

CHAIRMAN ROBERTI: We'd all like to hear you, 
Senator. 

CHAIRMAN ROBERTI: Mr. Gould, would you like to 
conclude? 

MR. GOULD: Senators, we have spent some 13 hours 
together, and I think you know me. We have had an opportunity 
to work together on a variety of issues, and my experience 
within the Department of Finance, the State Treasurer's Office, 
and now in the Health and Welfare Agency. 

When you look at Ward Valley, this is one issue, 
and I recognize it's a very important issue. There are 
hundreds of critical issues that we're going to be facing over 
the next couple of years. 



114 

I came to this position with the commitment to do a 
good job for the Governor, who asked me to serve in this 
position, and for the people of California, because I think 
it's important, and I wanted to contribute. 

I still believe that's the case. 

We face some incredible challenges. The fiscal 
situation and the kinds of choices we're going to be having to 
make within the Health and Welfare programs over the next 
couple of years are very difficult. You know that; you're 
exploring the same kinds of choices and having the same 
dilemmas as the Administration is having. I want to be part of 
that process. 

And I think we've been responsive, and the Governor 
has indicated a willingness to work with you in terms of making 
sure that people are well educated, and that we have a good 
understanding before we move forward on the licensing of a 
facility for low level radioactive waste. This is not 
insignificant. This is the same reason why Molly Coye, the 
Director of Health Services, and I have not moved forward to 
this point. We wanted to make sure we were absolutely 
satisfied before we're prepared to move. 

I think I've been pretty clear about a willingness 
to work with you, and I guess that concludes my comments. 

CHAIRMAN ROBERTI: Thank you, Mr. Gould. 

We want to vote for you. We also would like to 
have an adjudicatory hearing as part of the process. 

And as I indicated to the Governor, we do not tie 



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in one issue, because you make a very strong point. This Ward 

Valley, let's say it over again, it's radioactive waste 

disposal. As one of the witnesses said three weeks ago, 20 

miles from the Colorado River. And those hearings that took 

place, and they were sort of localized, and that's very 

important because they're going to bear the brunt of living in 

proximity. But still, for all the rest of us, we're concerned 

very much. 

So, I would hope that over the evening we can work 

out what is an adjudicatory hearing, but at the same time, 

defer to the Administration's legitimate wish that the hearing 

is not an interminable process where, after all the groups seem 

to have been heard, there are more groups to be heard. Because 

I recognize the need that we have to find a place, and I 

sympathize with the concerns that some of the directors of the 

various agencies of the various hospitals, that it's sort of 

like having, you know, better if you only have two nations with 

A-bombs rather than 37 nations spreading them all around 

- 
because somebody may make a mistake. The same thing can happen 

with the disposal of radioactive waste. 

But I would hope we could work out an adjudicatory 
process, not take a vote tonight. Tomorrow is another day. We 
can withdraw the nomination. We could actually have a hearing 
tomorrow, or we can withdraw the nomination from Rules because 
I think you may have the all-time record for a hearing, at 
least as far as I can remember. 

MR. GOULD: It's not a record I was looking forward 



116 



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to. 



CHAIRMAN ROBERTI: I know. 

SENATOR PETRIS: It's not quite the all-time 



record. 



CHAIRMAN ROBERTI: It isn't? Mr. Thrasher? 

SENATOR PETRIS: No, a long time ago, before — 

CHAIRMAN ROBERTI: Probably Mr. Procunier, and 
that's before I was around, yes. 

SENATOR PETRIS: Around World War I, I was on this 
Committee. 

[Laughter. ] 

SENATOR PETRIS: We had Mr. Procunier. 

CHAIRMAN ROBERTI: That's right. 

I think this was my all-time record. I thought 
[General Thrasher was, but I think it's Mr. Gould now. 

SENATOR PETRIS: And I might point out that that 
confirmation was denied. I led the fight. The person who 
appointed him was a Democratic President, so there's — 

CHAIRMAN ROBERTI: Presidential candidate. 

SENATOR PETRIS: Right, a Democratic Governor. 
[Laughter. ] 

SENATOR PETRIS: So, the issue is not because the 
Governor happens to be this particular Governor. That's not 
the issue at all. 

CHAIRMAN ROBERTI: Senator Mello. 

SENATOR MELLO: I'd like to try a motion, I think, 
that incorporates the Chairman's thought. And that is as 



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117 
following: 

The confirmation of Mr. Gould be held in the Rules 
Committee, but we would empower the Chairman to withdraw his 
nomination tomorrow from the Rules Committee to put it on the 
Floor for action. But between now and tomorrow, Mr. Gould and 
his designated associates, along with Mr. Dan Hirsch and a 
designated attorney, sit down and try to draft a document that 
would be presented to Senator Roberti tomorrow that would 
include the adjudicatory hearing procedure, limiting the 
participants on each side. Work out some arrangement that both 
sides agree to, but it includes that discovery be allowed so 
that the files could be opened to, as is the case in that type 
lof hearing, cross examination and the rules of evidence be 
incorporated in the hearing. 

SENATOR PETRIS: Excuse me. 

Can we add to that our very tired Legislative 
Counsel to be helpful in the language? 

CHAIRMAN ROBERTI: Because definitely we're going 
to need help. 

SENATOR MELLO: Yes. Legislative Counsel be 
available also to help serve to the Legislature's counsel. 

I think is that could be satisfied to the — that 
the Chairman be satisfied and Members of the Rules Committee, I 
certainly would be supporting that and supporting his 
confirmation tomorrow, which I all along hoped to do. 

But following short of this procedure of the 
hearing process, it would make it difficult, I think, for many 



118 
of us to do that. 

So, my motion, I believe I outlined it. It be held 
in Committee, but we empower the Chairman to withdraw his 
nomination from the Committee, bring it to the Floor upon the 
availability of a document to be drafted by him in cooperation 
with Mr. Dan Hirsch and his designated attorney, and the 
availability of Leg. Counsel, that would include the items that 
I set forth. 

CHAIRMAN ROBERTI: There's Senator Mello's lengthy 
motion before — 

SENATOR MELLO: I'm sorry it's lengthy, but it's — 

CHAIRMAN ROBERTI: No, you had no choice. I wasn't 
being sarcastic, Senator. 

Senator Mello's motion is before the Committee. On 
the motion. 

SENATOR BEVERLY: It's a long paragraph, or 
sentence, or whatever it was. 

I think the sense of it is agreeable, but I think 
we're leaving it all up to the Chairman of the Rules Committee. 

CHAIRMAN ROBERTI: No, you're not. You can be sure 
I'm going to consult. I don't want to be responsible for this 
one all by myself. 

SENATOR BEVERLY: If this group does not come to a 
meeting of the minds, what happens? We need some assurance 
that the Committee will meet again. 

CHAIRMAN ROBERTI : Then this Committee would 
reconvene if it's necessary. Yes, absolutely. 



119 

SENATOR BEVERLY: You'll either bring it to the 
Floor, or — 

CHAIRMAN ROBERTI: No, this is an informal addendum 
to Senator Mello's motion. 

But if everybody seems to be in agreement, I'll 
just move to withdraw. 

If we're at loggerheads, then we have to meet 
again. 

SENATOR BEVERLY: With that assurance — 

SENATOR MELLO: My motion did include delivery to 
the Chairman, because he's our Chairman. 

CHAIRMAN ROBERTI: Yes, absolutely. 

SENATOR MELLO: But that would be shared with each 
Member of the Rules Committee for your own evaluation. 

CHAIRMAN ROBERTI: So, that motion is before us. 

Secretary will call the roll. 

SECRETARY WEBB: Senator Beverly. 

SENATOR BEVERLY: Aye. 

SECRETARY WEBB: Beverly Aye. 

Senator Mello. 

SENATOR MELLO: Aye. 

SECRETARY WEBB: Mello Aye. 

Senator Petris. 

SENATOR PETRIS: Aye. 

SECRETARY WEBB: Petris Aye. 

Senator Craven. 

SENATOR CRAVEN: Aye. 



120 

SECRETARY WEBB: Craven Aye. 

Senator Roberti. 

CHAIRMAN ROBERTI: Aye. 

SECRETARY WEBB: Roberti Aye. 

CHAIRMAN ROBERTI: The vote is five to nothing; the 
motion carries. 

We'll see everybody tomorrow. Thank you, Mr. 
Gould. 

I think we're going to break for five minutes, then 
we will take up Ms. Azevdo as Member of the Unemployment 
Insurance Appeals Board, and Manuel Guaderrama, Member of the 
Board of Prison Terms. 

And then I would suggest we call it an evening. 
[Thereupon a brief recess was taken. ] 

CHAIRMAN ROBERTI: Ms. Azvedo, I think you're going 
to be lucky because it's so late. 

Please tell us why you feel you're qualified to 
(assume this position. 

MS. AZVEDO: I bring to the California 
Unemployment Insurance Appeals Board many years of business and 
management experience, which taught me how to meet a payroll, 
jinaintain a cost-effective budget, handle personnel problems, 
iand successfully supervise employees. 

In my capacity as Chairman for the Federal Council 

ion Aging, I have served the Administration on Aging numerous 

j 
times as a reviewer for government grant applications. I have 

I 

|Chaired the Federal Council on Aging for the last six years, 



121 
and have represented the elderly of this nation at conferences 
and forums across the nation, both as a speaker and visible 
advocate. 

I became a member of the California Unemployment 
Appeals Board in July of last year, and since then I've had the 
opportunity to become familiar with the Agency, fellow board 
members, judges, and staff. I have tried to become 
knowledgeable and effective, and have given it my best effort 
to be thorough, compassionate, and fair. 

I have been fortunate to have insight and 
inexperience into the political system, and as an American by 
choice, I have learned to appreciate the many privileges and 
responsibilities granted to me as a citizen of this great 
nation. 

I would also like to introduce to you my Chief 
Counsel for the Board, Mr. Tim McArdle, my company for the 
evening. 

CHAIRMAN ROBERTI: Are there any questions of 
Ms. Azvedo? Is there any opposition in the audience? 

SENATOR CRAVEN: Move Ms. Azvedo ' s confirmation. 

CHAIRMAN ROBERTI: Senator Craven moves 
Ms. Azvedo ' s confirmation be recommended to the Floor. 

SENATOR MELLO: Mr. Chairman, I just want to add 
for the record that — 

CHAIRMAN ROBERTI: Senator Petris is waiting, 
Senator Mello. 

SENATOR MELLO: I'm sorry. 



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Usually we're here — finally we have a group from 
an ethnic group that I'm proud to support, and her husband is 
here in the audience. 

But I want to just for the record say that Art 
jjAgnos, the former Mayor of San Francisco and former Member of 
ithe Assembly, called me out of a meeting, very excited, to tell 
me how much he wanted to be very supportive of Ms. Azvedo. 

So, I just wanted to indicate that to her and to 
the record. 

SENATOR BEVERLY: Maybe we'd better review it a 
little further. 

[Laughter. ] 

SENATOR PETRIS: He called me, too, Mr. Chairman. 

CHAIRMAN ROBERTI: Senator Craven's motion is 



before us . 



Secretary will call the roll. 
SECRETARY WEBB: Senator Beverly. 
SENATOR BEVERLY: Aye. 
SECRETARY WEBB: Beverly Aye. 
Senator Mello. 
SENATOR MELLO: Aye. 
SECRETARY WEBB: Mello Aye. 
Senator Petris. 
SENATOR PETRIS: Aye. 
SECRETARY WEBB: Petris Aye. 
Senator Craven. 
SENATOR CRAVEN: Aye. 



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SECRETARY WEBB: Craven Aye. 

Senator Roberti. 

CHAIRMAN ROBERTI: Aye. 

SECRETARY WEBB: Roberti Aye. 

CHAIRMAN ROBERTI: The vote is five to zero; 
confirmation is recommended to the Floor. 

MS. AZVEDO: Thank you very much, Mr. Chairman, 
Senators. It's been a long evening, and I appreciate it. 

CHAIRMAN ROBERTI: Thank you. 

Manuel Guaderrama, Member of teh Board of Prison 
Terms . 

MR. GUADERRAMA: I am the last witness. 

CHAIRMAN ROBERTI: Mr. Guaderrama, we will ask you 
the same question, why do you feel you're qualified to assume 
this position? 

MR. GUADERRAMA: Thank you. 

When I was appointed to the Board of Prison Terms, 
I was Deputy Police Chief of the City of San Diego. I was in 
charge of Field Operations. I had had 30 years on the Police 
Department, working nearly every capacity, every unit, of the 
Department. I worked my way up from a patrol officer to Deputy 
Chief in charge of Field Operations, which was being in charge 
of patrol and investigative forces throughout the city. 

I have served on numerous boards and commissions, 
including a number of citizens' groups. Just until recently, I 
was on the Board of Directors of Boy Scouts; I was on the 



27 



Board of Directors of Urban League of San Diego. I was on the 



124 

Advisory Board of the Job Corps . I was on the Board of 
Directors of United Way. I was a Commissioner on the Juvenile 
jjustice Commission. I was on the Board of Directors of the 
National Council on Alcoholism, and there were others. 

In 1987, I was appointed to the Advisory Board for 
Donovan State Prison in San Diego County, and during my — 
after my first year, I was appointed Chairman of that 
committee, and I served there until I was appointed to the 
Board of Prison Terms. And during that time, it really piqued 
my interest in Corrections, and I was amazed by the enormity of 
the system, prison system. 

My education includes an Associate of Arts Degree 
in Police Science, a Bachelor of Arts Degree in Criminal 
Justice Administration. I have a Master's Degree in Human 
Relations — Human Behavior. 

Additionally, I'm a graduate of the FBI National 
Academy, the Senior Management Institute in Boston College, and 
a graduate of LEAD San Diego, that's an issues-oriented 
leadership program. 

And that pretty much is a summary of my background. 
I think that my experience and my background and my education 
will help me be successful as a Commissioner on the Board of 
Prison Terms. 

CHAIRMAN ROBERTI: Thank you very much, 
Mr. Guaderrama. 

SENATOR CRAVEN: Move. 

CHAIRMAN ROBERTI: Senator Craven moves that 



125 



Mr. Guaderrama ' s confirmation be recommended to the Floor. 

Is there any further discussion or debate? Is 
there any opposition? 

Hearing none, Secretary will call the roll. 

SECRETARY WEBB: Senator Beverly. 

SENATOR BEVERLY: Aye. 

SECRETARY WEBB: Beverly Aye. 

Senator Mello. 

SENATOR MELLO: Aye. 

SECRETARY WEBB: Mello Aye. 

Senator Petris . 

SENATOR PETRIS: Aye. 

SECRETARY WEBB: Petris Aye. 

Senator Craven. 

SENATOR CRAVEN: Aye. 

SECRETARY WEBB: Craven Aye. 

Senator Roberti. 

CHAIRMAN ROBERTI: Aye. 

SECRETARY WEBB: Roberti Aye. 

CHAIRMAN ROBERTI: The vote is five to zero; 
confirmation is recommended to the Floor. 

Congratulations . 

MR. GUADERRAMA: Thank you very much, Senators. 
[Thereupon this portion of the 
Senate Rules Committee hearing 
was terminated at approximately 
8:30 P.M. ] 



126 
CERTIFICATE OF SHORTHAND REPORTER 

I, EVELYN J. MIZAK, a Shorthand Reporter of 
the State of California, do hereby certify: 

That I am a disinterested person herein; 
that the foregoing Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel 

or attorney for any of the parties to said hearing, nor in 

any way interested in the outcome of said hearing. 

IN WITNESS WHEREOF, I have hereunto set my 
• /A 



hand this / (r day of April, 1992 



C 



S), 



V > EVELYN J. y MIZAK ; 
' Shorthand Reporter 



P. 02 

127 



TESTIMONY OF ROBERT J. BUDNITZ 
BEFORE THE SENATE RULES COMMITTEE 

APRIL 8. 1992 

My name is Robert J. Budnitz. I am the President of Future 
Resources Associates, Inc., a small technical consulting firm in 
Berkeley, California. 

Background : I have a Ph.D. in physics from Harvard University, 
and I have been professionally involved for more than two decades 
in understanding technical issues related to radioactivity in the 
environment. My work has involved many different aspects of 
environmental radioactivity, including my authorship of an 
important Health Physics Journal article in 1974 entitled 
"Tritium Instrumentation for Environmental and Occupational 
Monitoring, A Review". This paper served for many years as the 
key reference document for how to measure extremely small 
concentrations of tritium in environmental water. 

My most recent relevant experience concerning Ward Valley is my 
service as a member of the blue-ribbon "Select Committee on 
Vadose Zone Monitoring at Ward Valley" that DHS assembled in 
February 1991 to advise dhs on an appropriate monitoring program 
at Ward Valley. I am also a member of the Board of Directors of 
the Cal Rad Forum. 

Objective Today: I am testifying here today to comment on 
misstatements and misconceptions about the Ward Valley low-level- 
waste site, that I understand were introduced as testimony during 
recent Senate confirmation hearings on the nomination of Dr. 
Russell Gould. 

The Technical Issue: As I understand it, erroneous or misleading 
testimony at Dr. Gould's hearing has claimed that the studies of 
tritium at the Ward Valley site by Harding Lawson Associates 
(under subcontract to US Ecology, the site developer) reveal a 

1 



P. 03 



128 



serious potential problem about Ward Valley's capabilities as an 
appropriate site. I believe that exactly the opposite is the 

case I believe that these studies demonstrate to me how well 

the Ward Valley site will perform as a repository! 

In my short time here today, I wish to make the following 
technical points: 

o Harding Lawson Associates performed a ground-water analysis 
to understand how groundwater and contaminants might be 
transported at the Ward Valley site. I have reviewed that 
analysis and I believe that it correctly describes the 
potential phenomena at Ward Valley.. 

o In my opinion, the transport at Ward Valley is well 

understood in terms off broader groundwater-transport 
theory. In fact, at Ward Valley as at most very arid sites 
there is a small net upward migration from deep below under 
all normal circumstances. The rara surface waters (from the 
occasional rainfall at the desert site) produce some 
downward migration, but even for large rainfalls this 
migration only goes down a few feet. There is high con- 
fidence that surface waters cannot travel downward more than 
a few tens of feet even for the most extreme surface-water 
conditions. 

o Therefore, even in the most pessimistic scenarios at Ward 

Valley very unlikely scenarios in which the engineered 

trenches fail to perform their function, and in which very 
much greater rainfall occurs than is at all likely in this 

very arid region I believe we have high confidence that 

the groundwater at Ward Valley will be very well protected. 
This means, of course, that the Colorado River is even more 
well protected, given that the topography and regional 
hydrology do not allow flow from the Ward Valley groundwater 
to the Colorado. 



P.. 04 

129 



o The fact that some very minute concentrations of tritium 

have been detected at depths around 100 feet at Ward Valley 
is well understood in terms of gaseous diffusion. Measure- 
ments at Ward Valley and analytical models developed to 
explain liquid and vapor transport confirm rather than 
refute the conclusion that the tritium at 100 feet got there 
by vapor-phase molecular diffusion. I believe the evidence 
to be overwhelming that even if highly-soluble radioactivity 
were to be released from the engineered trenches to surface 
waters, it would not be transported downward more than a few 
feet at Ward Valley. 

o Furthermore , the monitoring system that US Ecology will 

install and operate will allow us to check this conclusion, 
and thereby to assure that the hydrological-transport under- 
standing is correct. 

In conclusion, I believe that there is no feasible mechanism 
whereby radioactivity that might come in contact with rainwater 
through some very unlikely infiltration of the engineered 
trenches could travel more than a very short distance downward 
into the arid soils below the trenches. Transport down a few 
feet is possible; transport down to a few tens of feet seems very 
unlikely but cannot be ruled out. Transport any deeper than that 
is not consistent with our understanding of the phenomena, in 
sum, I believe that there is high confidence, based on sound 
technical information and analysis, that the Ward Valley 
engineered facility will contain all of the radioactivity, and 
that none will ever reach the deep groundwater. 



/lA^A 




ROBERT J. BUDNITZ 



Future Resources Associates. Inc. 

2000 Center Street Suite 418 Berkeley, CA 94704 
Phone: (510) 644-2700 Fax: (510) 644-1117 



195-R 

Additional copies of this publication may be purchased for $6.35 per copy plus 
current California sales tax. 

Senate Publications 
1100 J Street, B-15 
Sacramento, CA 95814 

Make checks payable to SENATE RULES COMMITTEE. 

Please include Senate Publication Number 195-R when ordering. 



.Soo 
4h l^ 



4> 



HEARING 

SENATE RULES COMMITTEE 

STATE OF CALIFORNIA 

u 




STATE CAPITOL 

ROOM 3191 

SACRAMENTO, CALIFORNIA 

THURSDAY, APRIL 9, 1992 
12:30 P.M. 



may zi mz 

**0 



194-R 



SENATE RULES COMMITTEE 
STATE OF CALIFORNIA 



HEARING 



STATE CAPITOL 
ROOM 3191 
SACRAMENTO, CALIFORNIA 



THURSDAY, APRIL 9, 1992 
12:30 P.M. 



Reported by: 



27 

Evelyn J. Mizak 

28 J Shorthand Reporter 



11 



APPEARANCES 

MEMBERS PRESENT 

SENATOR DAVID ROBERTI , Chairman 

SENATOR WILLIAM CRAVEN, Vice Chairman 

SENATOR ROBERT BEVERLY 

SENATOR NICHOLAS PETRIS 

SENATOR HENRY MELLO 

STAFF PRESENT 

CLIFF BERG, Executive Officer 

PAT WEBB, Committee Secretary 

ALSO PRESENT 

RUSSELL S. GOULD, Secretary 
Health and Welfare Agency 

LISA BRANDT, Chief Counsel 
Department of Health Services 

DAN HIRSCH, President 
Committee to Bridge the Gap 

MICHAEL H. REMY, Attorney 

Remy and Thomas 

Committee to Bridge the Gap 

JIMMY WING, Principal 
Legislative Counsel 

EVE KORTINGER, Deputy 
Legislative Counsel 



28 



Ill 



INDEX 



{'Proceedings 



Page 
1 



Governor's Appointees; 

RUSSELL S. GOULD, Secretary- 
Health and Welfare Agency 1 

Statements by CHAIRMAN ROBERTI re: 

Agreement on Ward Valley Adjudicatory 

Hearing 1 

Response by MR. HIRSH re: 

Problems with Department ' s Proposal 1 

Committee's Direction that Hearing 

Include Four Basic Items 1 

Full Hearing on All Disputed Issues 2 

Provision for Formal Full Discovery 2 

Decision Should Be Made on Record 

of Adjudicatory Hearing 2 

Decision on Ward Valley Should Be 

Made According to Adjudicatory Hearing 3 

Issue of Final Decision-Making Authority 4 

Discussion 4 

Concern with Wording "Remaining Scientific 

Issues" 7 

Discussion 7 

Issue of Adequacy of EIR 10 

Discussion 10 

ALJ Forbidden to Issue Conclusions 

of Law 14 

Discussion 14 



IV 



Lack of Formal Discovery 18 

Discussion 18 

Need for Applicant to Submit Requested 

Documents 24 

To Change Ultimate Decision-Making 

Authority of Director Requires Statutory 

Change 26 

Discussion 26 

Discovery for Applicant's Documents 32 

Discussion 32 

Scope of Hearing 33 

Discussion 33 

Agreement between Parties that final Decision 

to Issue License Rests with Director of Department 37 

Items Still in Disagreement 37 

Removal of Words "Remaining Scientific" 38 

Agreement between Parties on Handling of 

Discovery Requests 38 

Time Necessary for Discovery 38 

Agreement between Parties that ALJ Will Have 

Authority to Extend Discovery Time for Good 

Cause 41 



Agreement between Parties on Start Time 
for Hearing 

"Remaining Scientific" Problem 

Discussion 

Definition of "Scientific Issues" to 
Include Compliance Record of Applicant 



44 
45 
45 

54 



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24 
25 
26 
27 
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V 



Problem with Inability of ALJ to Issue 

Conclusions of Law 57 

Discussion 57 

Stipulation as to What Material Director 

May Use in Final Decision 59 

Agreement between Parties to Use "Analysis 

of Law" rather than "Conclusions of Law" 62 

Necessity for ALJ to be Truly Neutral 62 

Discussion 62 

Agreement between Parties on Selection 

of Administrative Law Judge 6 3 

Problems with "Remaining Scientific" 64 

Discussion 64 

Agreement between Parties to Substitute Words 
"Scientific and Safety Issues" for "Remaining 

Scientific Issues" 69 

Discussion of Intent 69 

Motion to Confirm 70 

Discussion by SENATOR MELLO 70 

Request to Parties to Submit Modified 

Proposal for Printing in Journal 71 

Committee Action 73 

Termination of Proceedings 73 

Certificate of Reporter 74 



1 

P-R-O-C-E-E-D-I-N-G-S 
— 00O00 — 

CHAIRMAN ROBERTI: The Committee will come to order 
on the confirmation of Mr. Russell Gould as Secretary of the 
Health and Welfare Agency. 

Last night we asked that we try to work out an 
agreement on a Ward Valley adjudicatory hearing. The Department 
of Health Services, which is an adjunct of the Agency Health and 
Welfare, has come up with a proposal, and I guess this was 
worked on all last night. 

If Mr. Hirsch is here, would you like to come 
forward. I understand you have some remaining problems? 

MR. HIRSCH: Yes. 

Last night you directed us to try to see if we could 
not have an agreement on an adjudicatory hearing for four basic 
things. We reconvened after meeting with you and met for a 
couple hours last night. At that point, I identified a proposal 
that we felt would meet the needs of the Committee and ourselves 
for an adjudicatory hearing. To our surprise, there was no 
response by the Agency at that time and no counter proposal. 

This morning we reconvened at about 9:00, and the 
counter proposal that you have seen was given to us . And we 
find that it basically is a non-starter. 

Let me explain why very briefly. 

You asked us to try to work out an adjudicatory 
hearing that would do four things. This proposal does none of 
those four. 



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First, that it should be a full hearing on all 
disputed issues regarding the Ward Valley project. The response 
by Secretary Gould is no, that the hearing can be only on issues 
that were narrowly limited. For example, the qualifications of 
the applicant, U.S. Ecology, would be forbidden to be dealt with 
in the hearing; the adequacy of the Environmental Impact Report, 
which is hotly disputed, would also be forbidden. A number of 
other issues would be forbidden. It would not be a full hearing 
on all the issues. It would be a narrowly limited one. 

Second, you asked that the hearing have — provide 
formal full discovery of all the needed information. The 
response by the Agency was again no. They propose instead only 
informal, brief, voluntary exchange of information where the 
applicant, U.S. Ecology, would be under absolutely no obligation 
to provide any information at all. 

Third, you said the decision should be made on the 
record of the adjudicatory hearing and based on information put 
forward according to the rules of evidence, all of which would 
be subject to cross examination and rebuttal. 

Again, the response by Mr. Gould was no. Two 
important components of that, first of all, the decision will be 
made in part on material not placed in the record of the 
adjudicatory hearing. In other words, the adjudicatory hearing 
would only be a piece of the evidence that would be used for the 
final decision, and that other evidence, therefore, would not be 
subject to the rules of evidence or to cross and rebuttal. 

And secondly, when we asked about the burden of proof 



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resting with the applicant, as is normal in the rules of such 
proceedings, we were told that that would not be the case 
because, quote, "This is not a proceeding that leads to 
something that has a burden of proof associated with it." 

That leads me to the fourth element which you asked 
us to work out last night, and that is that -- and this is the 
fundamental point — that the decision on Ward Valley should be 
made according to an adjudicatory hearing. And again the 
response was no. 

The administrative law judge who would preside at the 
hearing would not be an adjudicator, would not be permitted to 
make a judgment or a ruling on the matters of law at hand. The 
jadministrative law judge would issue a report dealing with 
'findings of fact, but would be precluded from issuing 
[conclusions of law. And the judgment about Ward Valley, the 
(central mater we're all here about, would be made not by the 
administrative law judge based on that hearing, but would be 
made by Dr. Molly Coye, the Director of Health and Welfare, 
again, based in part on information from this hearing and in 
part from other information not in that record. 

So, all four of the things that you identified as the 
components of an adjudicatory hearing that we should work out, 
we were unable to get a response that provides anything like an 
adjudicatory hearing. 

Thank you. 

CHAIRMAN ROBERTI: On the last point, let me try to 
go over some of those points myself, because I talked to 



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Counsel, and then I want Mr. Gould to interject, too. 

On the question of who makes the final decision, our 
counsel tells us -- maybe they're here — that under the normal 
rules of an adjudicatory hearing, the department-agency always 
makes the final — department head, excuse me, always makes the 
final decision. That would, in essence, I gather, be Mrs. Coye. 

MR. GOULD: That's correct. 

CHAIRMAN ROBERTI: Maybe I'm wrong, but that's what 
my counsel tells me. 

MR. HIRSCH: Two things -- if I could have my counsel 
join me? 

CHAIRMAN ROBERTI: Yes, and Legislative Counsel. 

MR. HIRSCH: As you know, this decision is basically 
a decision that the state is acting as a surrogate for the 
federal government under the Atomic Energy Act. And under 
those -- under that requirement, there is to be a decision made 
by in fact an administrative law judge as by an adjudicatory 
panel . 

Even there, the final issuance of the license is 
issued by the Department or Director, but it is authorized by 
the ALJ after having heard the evidence. In other words, the 
adjudicator authorizes the issuance of the license. If that's 
done, then the Department head does take that action. 

Mr. Remy, if you could respond. 

MR. REMY: My name is Michael Remy from Remy and 
Thomas . 

And the question you were asking is whether or not in 



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the State of California all quasi- judicial proceedings leave the 
decision with the decision maker. 

I think it's fair to say that for California 
procedure, as it currently is on the books, the ultimate 
decision is usually in a board or a director. But it is 
[possible for the Agency to essentially delegate to someone else 
,or to another body the decision with a reservation of more of an 
appealable function. In other words, for the Director to review 
it like an appeal, but the Director or the board does not 
reserve on t itself outright decision making. 

So, it's possible by consensus -- we're not dealing 
with a bill — in my opinion for the Department to consent to a 
procedure, and for the Director to consent to a procedure that 
comes closer to what under NRC procedures is a true 
quasi- judicial proceeding. 

CHAIRMAN ROBERTI: So, you're saying that this is 
pursuant to the federal; the necessity for having the ALJ make 
the decision is pursuant to federal regulations? 

MR. REMY: Yes, more so than current or existing 
state regulations. The — California currently does not have — 

CHAIRMAN ROBERTI: Our counsel, I believe, has only 
opined that it's state law that mandates the adjudicatory 
hearing. I don't know if we have an opinion from them that 
said under federal regulations, an adjudicatory hearing is 
necessary. 

My point is, the reason why I feel justified in 
making -- I hate to say these words — but as making an aspect 



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of the confirmation hearing the Ward Valley adjudicatory hearing 
is that our counsel tells us that the Department head, who is 
responsible to the Secretary, has to have an adjudicatory 
hearing pursuant to state law. 

If it's pursuant to state law, then what we would 
have to bind them by is the state law. 

We do not have an opinion — maybe it is the case, I 
don't know — that pursuant to federal law, the Director has to 
make the decision. That being the case, I hate to tie up a 
confirmation because in justification, we have to do it pursuant 
to the law that we may feel he's enforcing or not enforcing, if 
you see my point. 

We're saying that right now, we understand, it's our 
understanding by our counsel, that he has to enforce state law, 
which requires an adjudicatory hearing, but which the final 
decision, I guess, is made by the Director of the Department of 
Health. 

MR. REMY: Well, you must also really consider the 
scope, the scope of that hearing. 

Here, an adjudicatory hearing is really sort of an 
appendage to other decision making processes. And so, that 
comes full circle back to this federal-state. I mean, it really 
becomes the scope of the judicial or adjudicatory process. 

And what we're saying is that even in California, the 
Agency has the discretion to provide for a broader adjudicatory 
process . 

Currently it's a very narrow component that is thrown 



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into the decision as a whole, into the record. 

So, that's — there is more than the one issue 
before you on this . 

CHAIRMAN ROBERTI: Has our counsel arrived yet? We 
will have on them. 

On the other points, Mr. Gould, I am concerned myself 
that "remaining" -- that in your text, you indicate "remaining 
scientific issues" would be considered. 

I don't know what the word "remaining" means, but I 
personally would have a concern that that might limit the scope 
of an investigation profoundly. 

MR. GOULD: Senator, I think our intent was not to 
limit the scope, but to get some focus to the hearing. 

I think, as discussed with you last night in terms of 
the discussion you had with the Governor, he is interested in an 
open process, one that resolves the issues still in question, 
and that's what we were trying to basically paraphrase; is that 
that was our interest, to keep it open to those issues that are 
in question. 

We're not trying to be selective, but we're trying to 
bring the range of issues into some kind of manageable fashion. 

SENATOR MELLO: Mr. Chairman on that one point. 

CHAIRMAN ROBERTI: Yes, Senator Mello. 

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SENATOR MELLO: As I understand word "remaining" in 

your first paragraph, "address remaining ... issues", and "which 

creates exclusive record before the Agency", this really exempts 

from this hearing the previous hearings, including the CEQA, and 



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the EIR hearings. 

MR. GOULD: If I could have my counsel address that, 
Senator. 

SENATOR MELLO: Fine. 

MS. BRANDT: Senators, for the record, Lisa Brandt, 
Chief Counsel, Department of Health Services. 

The difficulty that we had in discussing this last 
night was that a complete re-doing of all the hearings that we 
have done to date, which were on the record. They were 
recorded. Every document that was received is in the record. 
There is a transcript of every words that was said at those 
hearings. In order to do all of that over, this hearing would 
take a minimum of a year-and-a-half . 

That was not what we believed this Committee wanted 
us to do, and that is not what we wanted to do. 

What we attempted to do was to say, let us consider 
that which we have already received in the hearings which we did 
pursuant to the statute. However, let us also recognize that 
some people want an additional forum to address those issues 
which still appear to be open. 

So the intent was to take the record that we have 
already made and to add to it an additional record on those 
issues -- on the issues on which people are not satisfied. 

SENATOR MELLO: Instead of adding to it, as I read 
this, you are limiting it to just the remaining scientific 
issues . 

I agree with you about putting a time frame on it. I 



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think the hearing should not go on and on, because, you know, 
the present Administration and the former Administration waited 
eight years for this urgency now to take place. 

But I personally think, the way I read this, you are 
limiting the scope of this adjudicatory hearing to exclude the 
EIR, the CEQA material that was here earlier. You only want to 
talk about the remaining scientific issues. 

MS. BRANDT: That's incorrect, Senator. 

We do not intend to limit the hearing to those issues 
which were not addressed previously. 

SENATOR MELLO: Why not remove the word "remaining" 
and the word "exclusive"? 

MS. BRANDT: I apologize if the word "remaining", 
which was my word, was a word that was difficult to understand. 

The intent of the word was those issues which people 
still want to address. In other words, those issues which have 
already been addressed, and that nobody wants to talk about 
anymore, don't need to be re-done. Those issues that people 
still want to talk about are the remaining issues. 

SENATOR MELLO: I would hope that the hearings on the 
remaining scientific issues, that's fine, but I think when the 
decision is made, it must be made on the entire record, 
including the EIR and CEQA. And all of that becomes part of the 
formal record that will be before the decision maker. 

MS. BRANDT: That is what this document says, 
Senator . 

SENATOR MELLO: It doesn't say that to me. 



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SENATOR BEVERLY: Paragraph Nine does, Senator. 

SENATOR MELLO: Paragraph Nine takes it out of the 
hands of the -- 

SENATOR BEVERLY: It talks about the entire record. 

MR. HIRSCH: If I may respond to that. 
The decision by Dr. Coye will be based on the entire record, but 
the material before the administrative law judge would not 
include the Environmental Impact Report, and parties would not 
be permitted to challenge the Environmental Impact Report in 
that adjudicatory or quasi-ad judicatory proceeding. 

They would also not be permitted to challenge the 
qualifications of the applicant, and a number of other issues 
that don't fit within that phrase "remaining scientific issues." 

MS. BRANDT: Mr. Chairman, one of the difficulties we 
have had in attempting to resolve this is that the positions 
that we have put forward have been mischaracterized. 

There has not been a statement made that the EIR 
cannot be challenged. If someone feels that an issue that was 
raised in the EIR needs further elucidation, of course that 
issue can be raised. 

What we have said is that we will not start from 
square one and re-do all of those things that were done before. 

If someone wants to introduce the EIR in evidence at 
that hearing, that's perfectly fine, but we won't start over 
again, given that it's already in evidence in another record, in 
a previous record from the same proceeding. We won't start over 
again. 



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CHAIRMAN ROBERTI: Is what she is saying 
satisfactory? 

MR. HIRSCH: We were told explicitly that the 
adequacy of the EIR could not litigated. 

CHAIRMAN ROBERTI: But now she's saying that — 

MR. HIRSCH: Let me make sure, because I'm not sure 
that's what she's saying. 

Can the adequacy of the Environmental Impact Report 
be litigated, and can the ALJ make findings, rulings, on whether 
or not it is adequate? 

MS. BRANDT: Not specifically in those terms. 

The issues that are in the Environmental Impact 
Report are at issue in this hearing. 

MR. GOULD: Senator, to take it back to a practical 
level, there have been questions about tritium, and what happens 
to tritium. That is an environmental issue that is not 
precluded from being addressed in this process, because we 
understand that continues to be an issue. 

So, you know, I think we can get lost in a lot of the 
words that are being used. 

CHAIRMAN ROBERTI: But specifically, are we talking, 
in your mind, for the most part specifically about the tritium 
issue? 

MR. HIRSCH: No. 

There are two central issues an adjudicatory hearing 
should resolve: A, has the applicant met its burden of proof in 
demonstrating that its application is sufficient, and it has 



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appropriate qualifications for license to issue; B, has the 
Department met its burden of proof in demonstrating that the 
Environmental Impact Report is adequate and meets the 
requirements for EIR. 

And those — the proposal from the Agency is to 
restrict it to the first matter and only to a subpart of the 
first matter. 

I would be unable — I could raise matters that were 
also duplicated in the EIR, but I would be forbidden to argue 
that the EIR is inadequate, and the ALJ would be forbidden from 
issuing a ruling that the EIR was inadequate. 

CHAIRMAN ROBERTI: That the EIR itself was 
inadequate, and you're saying they could only issue the ruling 
on what? 

MR. HIRSCH: If there's a page of the EIR that is 
also brought into evidence on an issue related to the license. 

But the adequacy of the EIR, that matter, there would 
be no ruling on, and we could not put forward evidence as to why 
it fails to meet the legal standards. 

Let me — normally, an administrative law judge in 
such a proceeding issues two things: findings of fact, and 
conclusions of law. 

Under their proposal, the judge would be forbidden 
from issuing conclusions of law. And therefore, all of those 
issues as to whether the EIR is adequate, or whether the 
applications is adequate to meet the legal standards, would be 
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MR. GOULD: Senator, if I might, let me give you a 
broad sense of the discussion we had. 

There are clearly issues where we still are not 
together. We acknowledge that. 

There are some issues, as you referenced, where we 
believe that the statutory construction of what we can do under 
ithe Administrative Procedures Act preclude some of the things 
that Mr. Hirsch has requested. Specifically, you mentioned one 
of them being the Director's role. 

You know, I think we have tried to be open. We have 
tried to discuss these things, and we will continue to try to do 
that, but there are some elements that are going to be very 
difficult for us to resolve because of the statutory 
construction. 

You know, I think it's a situation where it's not 
something that's going to be resolved, you know, quickly. It's 
not something that we can, I think, among us, resolve every 
issue, because these are complex issues in terms of how the 
structure of a hearing might proceed. 

You know, I think we've been very open. We have 
moved a long way in terms of trying to address the issues, and 
trying to establish a procedure that, quite frankly, our 
attorney, and we believe the courts, still indicate does not 
require this process. But we've moved to it voluntarily because 
we think it will help educate, and provide information to 
people. And we have included elements such as cross 
examination, having it done before an administrative law judge. 



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It is an adjudicatory hearing with discovery. 

We've made a number of changes. And that discovery 
process is consistent with the APA, the Procedures Act. We have 
tried to be responsive to that. 

So, I think, you know, if your question is, have we 
come to resolution on all these things? Certainly not. And I 
don't think that we will be able to completely satisfy the 
[concerns and the requests that are being raised, because some of 
them are going to be precluded statutorily. 

I just wanted to give you that general framework. 

CHAIRMAN ROBERTI: I understand. 

That aspect where the administrative law judge cannot 
issue a conclusion of law, but only a finding of fact, is that 
pursuant to statute? 

MS. BRANDT: No, Mr. Chairman, that is pursuant to 
the problem that I raised to you earlier, which is that the 
administrative law judge will have presided over one hearing in 
a series of hearings. 

And if the administrative law judge is expected to 
make a final conclusion of law on the entire package, we get 
back into the year-and-a-half minimum. 

CHAIRMAN ROBERTI: What is the benefit of a finding 
of fact if you can't -- 

MS. BRANDT: The finding of fact is — 

CHAIRMAN ROBERTI: — issue — 

MS. BRANDT: — extremely beneficial and extremely 
important to the proponents, because a finding of fact made by 



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an ALJ is virtually never overturned by a court. And a Director 
|who does not adopt the findings of fact of an ALJ is almost 
always overturned by a court. 

So, those are essentially final filings -- findings 
of fact, for all practical purposes. 

CHAIRMAN ROBERTI: Which could then be subject to 
further litigation by — 

MS. BRANDT: They would be reviewable in a court 
upon review of the license decision and the EIR certification. 
And it would be of crucial importance that, for example, an ALJ 
has found that tritium does in fact migrate down to groundwater, 
and if the Director subsequently finds, well, nevertheless, 
there is no harm to the public in allowing the site to be built 
in this fashion. 

So, what we were trying to do was to address the 
factual disputes, the factual issues, and make a binding record 
of those facts that the Director can then consider. 

CHAIRMAN ROBERTI: Why, Mr. Hirsch, would you be 
skeptical of that process? The finding of fact could be raised, 
the subject matter that we're dealing with is of enormous public 
consequence. We're almost saying we're talking about a Director 
who's going to be absolutely arbitrary as far as the public 
health is concerned, public attitude be damned. 

Is that correct? 

MR. HIRSCH: Well, I think that you misread the 
argument . 

I believe that what's being said is that findings of 



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fact — for example, does tritium migrate or not — would have 
some weight, but that the fundamental question as to whether or 
not the applicant has met the requirements, whether that fact 
has any relevance on whether the license should be issued or not 
is totally, in their proposal, in the discretion of someone who 
has already been a very vociferous advocate of that activity. 

The fact is only relevant in a nexus to the 
conclusion, and if one is prohibited from even making — dealing 
with those conclusions, then it goes nowhere. 

If the facts are that there is an aquifer connected, 
tritium migration at a rapid rate, there is nothing that 
prohibits the Director from saying, "I believe that the 
probability of any leaking to be extremely small, and I find 
that the standard for adequate application is met." 

There is no nexus between the first part, which is 
the fact, and the conclusions, as to whether the standards have 
been met . 

And I frankly — if I may make one last comment. If 
indeed the Agency says that the findings of fact will 
essentially be untouched by the Department head, why would they 
have problems with the conclusions of law being permitted to be 
issued also by the administrative law judge, and give that kind 
of great deference to the findings of that body, particularly 
since those findings would be based on material in that record 
that has been printed to be challenged, as opposed to all this 
extra record material . 

I believe that's particularly important because of 



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the admission before your Committee several weeks ago that there 
had been ex parte contacts between the decision makers and the 
applicant. It seems to me, because of the controversy of this 
issue, it would be extremely important that we do have those 
findings of fact and conclusions of law made by the ALJ, who's 
independent and would be immunized from ex parte communications, 
makes the decision based on the record before him or her, and 
that if necessary, some appeal process be provided where there 
is a determination based on the rules of what should be 
appealed. 

But if they're willing to permit the facts, why not 
also the conclusions of law? 

MR. GOULD: Senator, first I have to comment. 

You know, this characterization of the discussions 
we've had today I find to be, I guess, rather offensive. 

We tried very hard to work with the other side in 
terms of their perspective and looking at what could be done. 

I think the characterization of Dr. Coye, who would 
have responsibility for licensing this, as being a "vociferous 
advocate", and therefore prejudicing her view of this, I don't 
think shows respect for the kind of person she is and the kind 
of judgment she would exercise. 

We have deliberately not licensed this facility 
because we wanted to make sure that we were absolutely certain 
as to whether this was something we should move forward on. And 
I think we have had that authority. We continue to have that 
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have chosen not to exercise that. 

And so, I just think for the record, that kind of 
characterization is not fair nor is it accurate in terms of the 
kind of attention we've paid to this issue. 

MR. REMY: If I might just add one point and address 
the assertion made that the court would virtually never overturn 
a finding of fact, that is based on the assumption that the 
court finds that there is no substantial countervailing evidence 
in the record. 

What we have here, however, is a proposal that the 
Director can choose from other proceedings to support its 
factual determinations or legal determinations. 

So, under those circumstances, it is really not 
accurate to say that the final decision maker, the Director, 
could not use other facts to overcome the facts before the 
adjudication. 

CHAIRMAN ROBERTI: What are the other remaining 
decisions, issues? 

MR. HIRSCH: No formal discovery is one. 

CHAIRMAN ROBERTI: Of the applicant. 

MR. HIRSCH: No formal discovery of DHS, either. 
There is a voluntary, but unenforceable, commitment to make 
documents available. 

In addition, there's only a 30-day period for 
discovery, and no time to do real discovery results, discovery 
of use. 

MS. BRANDT: Mr. Chairman, once again that's a 



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misstatement of what the document says. 

There is formal discovery pursuant to the California 
Administrative Procedure Act. There is not a formal process for 
enforcement because the only process that's constitutional in 
California for enforcing discovery is to go to Superior Court, 
and ask the Superior Court to do it. 

We have not incorporated that in this, which is 
essentially a voluntary proceeding. 

So, what we have done is, the Department of Health 
Services has committed to voluntarily follow any decision of the 
administrative law judge. 

Obviously, I can't commit U.S. Ecology to do 
likewise. 

Again, this is a record that will be made for court 
review. If discovery is not complied with, the court obviously 
will have that in front of it and will consider that as being a 
major component in how valuable the decision was at the end. 

CHAIRMAN ROBERTI: Thank you very much. 

I'll ask our counsel, Mr. Wing, is there a different 
between informal and formal discovery? 

MR. WING: I would think the formal would be 
enforceable, whereas the informal as is set out here would be 
within the discretion. But here the Department has committed 
itself to obey the order of the ALJ. 

CHAIRMAN ROBERTI: You're saying the Department has 
committed itself to obey the order of the ALJ, so through that 
aspect, would it be enforceable? 



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MR. WING: Enforceable in what way did you want, 
Senator? 

CHAIRMAN ROBERTI: That they would have to 
comply with discovery. 

MR. GOULD: Senator, let me suggest on that that we 
are committing ourselves to providing that. As you well know, 
we have the opportunity to appear before you on a number of 
occasions. Clearly, I think, it might be brought to our 
attention if we were not complying with that. 

I think you have our assurance that would not be 
something we would want to do, have to raise that issue. 

CHAIRMAN ROBERTI: So, if the ALJ ordered you to 
produce documents, you're saying you would comply? 

MR. GOULD: Absolutely. 

CHAIRMAN ROBERTI: Mr. Hirsch and maybe our counsel 
are saying you don't have to comply if you don't want to. 

MR. HIRSCH: And U.S. Ecology not at all. 

CHAIRMAN ROBERTI: We'll get to U.S. Ecology in a 
moment . 

MR. REMY: May I add one thing. 

I think even if we were to seek the assistance of a 
!|court, it -- no court would probably intervene until the end of 
the process, the total process. So, it's sort of a total 
iconsentual thing. 

CHAIRMAN ROBERTI: The issue of U.S. Ecology 
documents — and maybe I'm wrong, but that doesn't concern me as 
much -- if those documents are not in the possession, which I 



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assume they would be, of the DHS -- 

MR. HIRSCH: Many are not. For example, waste stream 
information — 

CHAIRMAN ROBERTI: Which? 

MR. HIRSCH: The information on what the waste stream 
looks like. DHS has said they don't possess it. It's in the 
possession of U.S. Ecology. And that's true for a great deal of 
the information. They are the applicant, after all. 

CHAIRMAN ROBERTI: Mr. Wing, something like the waste 
stream information, if U.S. Ecology had it, nobody else could, 
under the provisions we have here, there ' d be no way of 
obtaining it? 

MR. WING: That's right, Senator. 

CHAIRMAN ROBERTI: I guess you're arguing there's no 
way we can do that anyway? 

MR. GOULD: Under the Administrative Procedures Act, 
we are providing for the discovery that is there, and beyond 
that, committing ourselves to comply with that. So we are doing 
what we can. 

And as you recall, it was your counsel who, in 
looking at it, their feeling was that our requirement was to go 
with the Administrative Procedures Act in terms of an 
adjudicatory process. Although we don't agree with that 
finding, we have gone along with that, and then committed 
ourselves beyond that in terms of discovery. 

MR. REMY: There are procedures in California under 
the APA whereby the Agency can issue a subpoena, but usually the 



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party has to make the request of the Agency at that particular 
point. That's not being proposed here at all. 

In other words, for example, regulations could 
provide that the applicant must comply with such requests by the 
Agency. In other words, what happens is that the Agency would 
have to make the request of the applicant on behalf of the party 
requesting it. 

So, it's possible. It can be done. 

CHAIRMAN ROBERTI: Do you have any objection of 
incorporating something whereby the Agency would be required to 
seek information from the applicant? 

MR. GOULD: Senator, I'm not familiar with that 
procedure, but I'll be willing to look at that and see if that's 
appropriate. I just don't know enough about it to give you an 
answer. 

SENATOR MELLO: Mr. Chairman, I think that's a very 
important point, because the information I've reviewed, U.S. 
Ecology, which has some types of operations in other states — 
Nevada, and Washington, I believe in South Carolina -- have had 
quite a few incidents of failures in those areas and actions 
taken against them by different entities. 

I don't have that information right here, but I do 
have it up in my office. 

Maybe I can ask Mr. Hirsch, can you describe briefly 
what is the track record for U.S. Ecology in other states where 
they have these operations operating? 

MR. HIRSCH: That is one of the central issues we 



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would want to litigate in such a proceeding and would be 
forbidden to do so under these — this proposal. 

But there are large amounts of record which would not 
be in the hands of the Agency that would deal with violations by 
this company in Illinois, Washington State, and other states. 
And the records of the leakage and so forth would also not be 
available except from U.S. Ecology. 

Without discovery, formal discovery rights, a major 
portion of what one needs to have to know whether or not this 
company should indeed be granted this license would be 
unavailable . 

SENATOR MELLO: To you knowledge, they have had 
incidents of violation in other states? 

MR. HIRSCH: They abandoned their site in Illinois, 
and the State of Illinois and the NRC had to take legal action 
to get them back on the site. There is substantial leakage 
there . 

The dump site in Maxi Flats also had to shut because 
of leakage. They've been named the responsible party for the 
contamination at that site. 

There have also been violations at Beatty, Nevada, in 
fact, a few weeks ago. 

But that material would not -- we'd have to get it 
from U.S. Ecology, and we can't do that without formal discovery 
rights . 

CHAIRMAN ROBERTI: Well, of the two issues that I 
have heard, my own opinion is that there should be some sort of 



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requirements that U.S. Ecology should have to submit documents, 
because if the flow of the stream, if that's one of them, one of 
the things that has been concerning is — and that is, if there 
is any possible contamination of the underground river water or 
sources to water supplies — that's a major concern. 

However, on the other hand, what we've been -- from 
ione point, which I don't think the people protesting Ward Valley 
have made, in my mind, and that is that the final decision 
cannot be made by the Department head. 

MR. HIRSCH: If I could respond to that, maybe we 
could resolve it. 

CHAIRMAN ROBERTI: I want you to know, so you'll know 
the context I'm coming from. 

I'm not coming from a policy context. I'm coming 
from a context of where I think our authority is on this 
Committee, and I don't feel — I mean, we could pressure the 
Administration and make a policy decision, but I don't think 
that's the perspective of a confirmation hearing. 

Why I think it's legitimate to have it here is that 
we feel that the Director and the Secretary should comply with 
the law. And our opinions tell us that the law requires an 
adjudicatory hearing under state law. The state law aspect is 
that the final decision is with the Director. 

MR. HIRSCH: If I could respond, I believe that this 
would meet your concerns . 

It seems to me that what is reasonable, and I believe 
the Committee has wanted in fact, is an adjudicatory proceeding 



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that does in fact resolve the disputed issues of fact and law. 

To maintain the final authority with the Director 
would mean, I believe, no major problem. And that there should 
be the normal appeal procedure from that decision to the 
Director. The Director would have the right to rule on that 
appeal according to the normal way she's supposed to rule on 
appeals. If she overturns the decision, her decision would also 
be appealable to the judiciary. 

There ' s no problem with the Director retaining the 
ability to hear an appeal, but what disturbs us is that the 
so-called adjudicatory hearing would not involve any 
adjudication and would not have a decision at the end of it 
based on that record. 

What we want is a decision from that body based on 
the record before it put in the rules of evidence -- by the way, 
sufficient time for discovery. This 30 days, particularly if 
someone resists discovery, can't possibly work — and a decision 
made: have they met the standards or not. And then both 
parties, all parties, can appeal that decision to the appellate 
body within the DHS, which should be an appeal board, but if 
there's not, directly to the Director, and from there to the 
judiciary. 

I would think that that meets your requirements of 
the state law, and also your concern that there be a full 
adjudicatory proceeding. 

MR. GOULD: Senator, maybe I should have counsel 
respond, but we feel that would clearly require a statutory 



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change, to change the authority and the review process of the 
Director of Health Services in this process. 

MS. BRANDT: That's correct, Senator. 

What we have done is, we have tracked the provisions 
!of the Administrative Procedure Act. The section is in fact 
jjcited in the submittal, and that section says how a decision 
goes from the administrative law judge to the Director. 

And I need to reiterate once again that the 
fundamental problem here is that the proponents want a full 
hearing of every issue, including those that have already been 
heard. Unless you do that, you cannot have a final decision by 
the ALJ, because the ALJ would then have to hear all the issues 
de novo from the beginning of the hearings that we have already 



done. 

CHAIRMAN ROBERTI: Let me ask our counsel now, would 
the appeal from the ALJ — rather, excuse me, from the Director, 
as Mr. Hirsch outlined, to a judicial authority require a 
statutory change? 

Which, I take it, if it requires a statutory change, 
maybe I'm wrong here, then that would be adding a new aspect to 
an adjudicatory hearing. 

MR. WING: Senator, the law, the way it's set out, 
vests within the Director the discretion to grant or deny the 
license. 

I can't see any appeal up to a court unless there's a 
total abuse of discretion, and that's highly doubtful. 

You can always go into court, but whether you can get 



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in is another question. 

MR. REMY: May I? 

I believe that in California, it is perfectly 
appropriate for the Director to delegate the decision making 
jiprocess, as long as he reserves -- he or she reserves on to 
[[themselves the ability to overrule. 

So, it's a question of delegation, a question of 
willingness, not a question of statutory authority. 

MS. BRANDT: I disagree with that, Mr. Chairman, 
because what Mr. Hirsch is talking about is not a delegation 
downward, reserving to herself the final decision. It is the 
Director acting as an appellate body and doing what is 
essentially appellate review, rather than reserving the decision 
to herself. And those are fundamentally different. 

For the Director to serve as an appellate body would 
require statutory change. 

MR. REMY: We disagree. 

CHAIRMAN ROBERTI: Back to you, Mr. Wing. 

MR. WING: Is the question whether -- 

CHAIRMAN ROBERTI: The Director would be acting as an 
appellate body herself. Does that constitute, would that 
constitute the need for statutory change? 

MR. WING: In my judgment it would, because the way 
the statute is written, it's vested in her. 

CHAIRMAN ROBERTI : He seems to think it ' s vested in 
her. 

MR. WING: It's not delegateable . I can't see that. 



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MR. REMY: It's an exercise of discretion. And if, 
J for example, a Director has staff make recommendations on a 
^technical aspect, in this particular instance to delegate to a 
process and body a determination of factual and legal questions, 
the assertion here is that somehow that has given away the 
decision making power of that Agency. 

In my opinion, a court would not be able to overturn 
that unless it found that to be an abuse of discretion. 

CHAIRMAN ROBERTI: I understand your point. I sort 
of feel compelled, however -- and maybe I can get some help from 
Senator Petris but let me finish my thought, then maybe you can 
alter my way of thinking — but I feel compelled to follow our 
own counsel . 

If this necessitates a statutory change, then that's 
hard to make that an aspect of an adjudicatory hearing, because 
that's not part of the existing adjudicatory hearing statute. 

But what do you have to think about this, Senator 
Petris? 

SENATOR PETRIS: I think there is some confusion here 
between the internal process and an appeal beyond the process 
into the judiciary. 

I think the normal process is, an administrative law 
judge hears the matter, and I think in all cases, provides 
findings of fact and conclusions of law, just like a Superior 
Court trial judge would. 

But that always goes to the Agency with a 
recommendation. Now, when the Agency reviews that, that's not 



29 

an appeal in the normal sense that seems to be talked about 
here . 

MR. REMY: I agree. 

SENATOR PETRIS: It's an appeal in the sense that 
there's another crack at it at the next level, but it's not an 
appeal in the formal judicial sense. 

So internally, it's just part of the process. It 
goes from the ALJ to the Director of the Agency. 

Now, when that decision is made by the Director, 
after reviewing the ALJ's decision, then the party is free to 
jump into the judiciary system. 

That's the normal process as I understand it. That's 
— that can more properly be labeled an appeal . 

So, we've got an internal process that really 
shouldn't be called an appeal. It's more like a review. 

MR. REMY: I think it's an exercise of discretion. 
The ultimate discretion is still with the Director. 

SENATOR PETRIS: Still with the Director. So, we 
can't change that without a change in the statute. 

I don't think we can agree here to say we're going to 
have the ALJ hear it and make the final decision, and walk away 
form it. We're not authorized. We can't do that under the law. 

Isn't that right? 

MR. WING: Yes. 

SENATOR PETRIS: And if we did, let's say we did, and 
the decision is favorable to the opposition, then some other 
party out there that's not part of these proceedings can 



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challenge that as being a violation of the normal process, a 
deviation, and being outside the statutory authorization, and 
you've got another reason for litigation by someone not even in 
this room. 

MR. REMY: Well, I think, arguendo, we are accepting 
what you're stating, and that is that in California, the 
ultimate decision is in either a board or the Director, in this 
case the Director. 

But what we're advocating and seeking is an 
adjudication of the total scope. In other words, the factual 
questions, legal questions, and the record, the total record. 

With that, we would — we believe that the process 
would have produced something on which the Director will 
exercise his or her discretion. And it is that record which 
would be reviewable ultimately by a court, and that would be 
satisfactory. 

But we're seeking a full adjudicatory proceeding that 
is all-encompassing before you get to that stage. 

SENATOR PETRIS: What's lacking under the 



Department's offer? 

MR. REMY: Almost everything. 

SENATOR PETRIS: They're claiming that the discovery 
will be available, but apparently it has some voluntary or 
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MR. REMY: Well, first of all — 

SENATOR PETRIS: — and they're limiting the judge to 
findings of fact only, not conclusions of law. So, that's 



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another thing. 

MR. GOULD: Senator, if I might clarify one point. 

There was some discussion of U.S. Ecology, their 
information. Our understanding is that we can 

obtain information from U.S. Ecology through our requests, and 
then it's a matter of public record, relevant documents could be 
got. 

So, there is a mechanism to get other information. 

SENATOR PETRIS: Well, I think in the absence of a 
formal proceeding, that would depend on their willingness to 
give it up. 

Let's say the stream information. That seems to me 
to be vital and ought to be reached. It also raises the 
question in my mind, if the proceedings up to now have been 
really thorough and all aspects of this problem examined, how 
come the Department doesn't have that stream flow information? 

Is it because they wouldn't produce it, or because 
the Department didn't think of asking for it? I don't know the 
reason. 

MS. BRANDT: We do have the stream flow information, 
Senator. 

What we did not have is the original manifests from 
which that information was taken. 

SENATOR PETRIS: Oh, I see. Because I understood 
earlier that that's not available. 

MS. BRANDT: The waste stream information is 
available. What the proponents have asked for is the underlying 



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original manifests. 

SENATOR PETRIS: The basic documents. 

MS. BRANDT: That's correct. 

The -- to further elucidate what Mr. Gould said about 
obtaining information from U.S. Ecology, if the Department 
determines that the information is necessary to the licensing 
proceeding, it would not be voluntary for U.S. Ecology to 
provide it. 

So, we could have a procedure whereby, if the ALJ 
determines that information necessary to the licensing 
proceeding is in the possession of U.S. Ecology, and that the 
Department needs it for the licensing proceeding, it could be 
obtained from U.S. Ecology through the Department. 

SENATOR PETRIS: On its own initiative, or would you 
be relying on an order from the judge? 

MS. BRANDT: What we would be doing is, let's assume 
that one of the parties says, "I need such and such a document 
from U.S. Ecology, and they won't provide it." 

If the judge made a decision that that document was 
relevant to the proceeding, the Department would be willing to 
permit that it would then obtain the document from U.S. Ecology 
and make it available in response to that, through the same 
process that we would make our own documents available. 

SENATOR PETRIS: Since they haven't been designated 
as a licensee, it would be in their interest to cooperate. 

MS. BRANDT: That's correct. Well, they have that 
obligation to the Department. 



33 



SENATOR PETRIS: Maybe it would make good practical 
sense, too. 

MS. BRANDT: Senator, the one thing that makes 
overriding good sense in this is that if the opponents of this 
process raise an issue with sufficient certainty so that 
documents need to be put into the record in opposition, the 
documents will be put into the record. 

It's the raising of the issue that causes the 
documents to flow, not some sort of legal process that enforces 
that. 

CHAIRMAN ROBERTI: Well, I tend to think, back to 
what I said earlier, try to bring this to some sort of narrowing 
of the pathway, that the request for a process other than the 
Director being the final decision maker goes beyond what we 
contemplate our authority here. 

However, on the scope of the issues question -- 

MS. BRANDT: Is there anything we can further clarify 
for you on the scope of the issues? 

CHAIRMAN ROBERTI: I'm very concerned that the scope 
of the issues could just pretty much shut out everything, and I 
don't think that's what the Agency would do. 

MS. BRANDT: No, and this actually, this part — 

CHAIRMAN ROBERTI: We have people who are, you know, 
very, very concerned about — 

MS. BRANDT: Certainly, and this part of the proposal 
actually tracks the NRC procedure, because that is what the 
NRC does. The ALJ determines which are genuinely disputed 



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issues and which are simply PR things that some — 

CHAIRMAN ROBERTI: Who does do this? 

MS. BRANDT: The administrative law judge hearing and 
NRC hearing. 

So, we're actually paralleling the NRC process in 
having the administrative law judge narrow the issues to those 
that appear to be genuine, legitimate issues in dispute. 

SENATOR PETRIS: It seems to me you're narrowing 
those issues in advance, not even letting them go before the 
judge. If you're saying that the following matters will not be 
permitted to be considered — for example, the qualifications of 
the applicant -- 

MS. BRANDT: Senator, again, we're having some 
problems with misrepresentations about what we have said. 

What we have said is that the general qualifications 
of the applicant in the past at other sites would not be 
considered a legitimate issue, because it isn't a scientific 
issue to be addressed. 

However, if a site -- if there is a specific issue — 
this licensee does not know how to do X; this licensee in 
predicting whether the site is suitable didn't demonstrate 
appropriate knowledge -- 

SENATOR PETRIS: If the licensee says, "Yeah, we know 
how to do X," and some state is currently suing them for not 
doing X, that's a legitimate fact of evidence that should be 
introduced, it seems to me. 

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may not be a legitimate fact, but the underlying facts in that 
case may be legitimate. 

SENATOR PETRIS: But you're not going to get to it 
unless you let it in, let the court examine it. 

I think that there's a tendency here to — you know, 
I appreciate the -- I know you've made concessions, and you've 
come a long way from your original position which was, "Hey, we 
don't have to do this stuff." 

Now you're saying, "Well, we will do this, and this, 
and that," but there's still a tendency to be too confining, it 
seems to me. 

If I were interviewing a school teacher for a job, 
and I asked that teacher about proficiency in Spanish. The 
teacher says, "I speak Spanish very well." 

"Well, where did you work before?" 

"I worked at Such-and-Such School." 

I want to call that school, "No, that teacher doesn't 
know more than 'good morning' and 'good afternoon", period." 

That's a legitimate inquiry, and it should be 
legitimate here, too. I don't know why that should be excluded. 

And I don't know what the merits are, you know, but 
the fact that there is something in the track record that 
suggest a weakness there needs to be explored and shouldn't be 
excluded in advance. 

MS . BRANDT : No . 

I think that we're being unfairly accused of having 
excluded things in advance. 



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What I've tried to do is to say that the hearing 
should be focused on specific issues, not on general 
allegations. "This licensee has had a bad track record 
elsewhere," is a general allegation. 

"This licensee doesn't know how to do a specific 
thing" is a specific issue. 

So, the attempt is to narrow the issues to legitimate 
issues that can be talked about. 

We have already had a very long series of hearings 
where people could come and say anything they wanted, whether or 
not it was directly relevant, whether it was general or not, and 
the focus of this hearing was intended to be the intensive 
examination of legitimate serious issues that people want to 
talk about. 

SENATOR PETRIS: Well, I understand that, but I still 
hcve a feeling of constriction here instead of -- the issues 
that they're seeking to raise, it seems to me, are legitimate 
issues . 

Maybe there ought to be agreement in advance that 
these are the issues that are to be determined. You do that at 
a pretrial anyway. 

MS. BRANDT: It's a little difficult since we don't 
know who all will want to be parties at this point. 

SENATOR PETRIS: Well, that will be flushed out in 
the course of the process, I imagine. 

MS. BRANDT: That's correct, but that's the place, 
once we know who the parties are, I think that's the place to 



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decide what the issues will be, and let all the potential 
parties — 

SENATOR PETRIS: We know who some of the parties are, 
or want to be. They've been a party here for a couple of days. 
That's not subject to guess-work or speculation. 

Beyond that, of course, we dont ' know, I agree. 

MR. HIRSCH: If I may see if we can a little closer 
to where — see where we are. 

It seems to me that there's a clear resolution here 
possible, and this interaction has been helpful about it, and I 
would suggest along the following lines. 

The final decision on whether to issue this license 
would be in the hands of the Director. She can use her 
discretion and simply ignore the findings below if she wishes. 
We could challenge that as an abuse of discretion if that were 
to happen, and there would also be political consequences to her 
for going against a decision that had been made after careful 
consideration of the evidence. 

And I believe that that would a substantial movement 
on our part, and it resolves your concern on the statutory side 
of matters. 

I believe that on the issues that should be 
addressed, it should be a full hearing on all the issues in 
dispute. I don't think they should limit them in advance, 
particularly issues of their past practice of the applicant, and 
the adequacy of the EIR, which are some of the most hotly 
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the hearing. 

Yes, I think, in fact, all you have to do is remove 
the two words "remaining scientific", and keep it as it is to 
allow the public to address the issues relating to whether a 
license should be granted. 

On the question of discovery, think we've reached a 
proposal. It's a little awkward, but we make a request for 
discovery to U.S. Ecology and to the Department of Health 
Services, and they will either voluntarily comply, or if in 30 
days we discover that they have not, then go to the ALJ and ask 
for an informal ruling, and the Department is committed to 
comply with the ruling if it is against them, and if it against 
U.S. Ecology, to force — to obtain the documents themselves and 
then provide them to us . 

The way for that to work, though, is that the time 
period for discovery can't work in this 30-day period. That's 
just too — I mean, if we have 30 days in which to get a 
iresponse — 

CHAIRMAN ROBERTI: You're saying when everything has 
to be done, it can't be done in 30 days. The Department says 
they want it 30 days. 

What do you think? 

MR. HIRSCH: What I'm saying is, 30 days from the 
discovery request there's supposed to be a providing of 
materials; 30 days from thereafter, according to their proposal, 
the hearing starts . 

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39 
discovery disputes are resolved and the material's provided, 
then the hearing starts . 

CHAIRMAN ROBERTI: The production of materials. 

MR. HIRSCH: Right. 

CHAIRMAN ROBERTI: Rather than from the — 

MR. HIRSCH: Date at which the request was made. 

In other words, we don't want a situation were the 
opposing party — 

CHAIRMAN ROBERTI: I understand that. 

Is there any problem with that? 

MR. GOULD: I just don't know at what point in time 
the requests are made, and how that — I mean, we're trying to 
manage the process, as we described, in a reasonable fashion. 

SENATOR PETRIS: Let's take an example. There's a 
request for documents. The time period to make the request is 
30 days. It's made in 10 days. The documents are produced 10 
days thereafter. That starts the next 30 days for use of the 
documents and the beginning of the hearing. 

That seems to be what they're saying. Does that 
sound reasonable? 

Of course, I don't know. I'm assuming shorter 
periods, but I know you don't know what the dates are, but I 
know there are time periods, however. You can't go beyond a 
specific number after the triggering. 

MR. GOULD: Senator, maybe one way to deal with that 
would be give the authority to the administrative law judge to 
extend the process up to 30 days if they found there were delays 



40 
in receiving material, or something. Put that in the hands of 
the administrative law judge so that they could manage the 
process . 

SENATOR PETRIS: Sounds reasonable to me. 

MR. HIRSCH: The time period is close, but it's not 
quite right. 

It seems to me if 30 days after a request is made, 
they ' re supposed to provide and they don ' t . You then have to 
file your motion to compel. They have to respond to it. The 
ALJ has to make a ruling. They then have to compel DHS to then 
ask U.S. Ecology for the documents, obtain them and provide them 
to us, and we have to get them so that we have 30 days in 
advance of the hearing to be able to review and compare. 

So, I think that it's quite appropriate to simply 
give the ALJ the authority to extend that time period for good 
cause. 

SENATOR PETRIS: It's in their interest to speed this 
up. They'd like to get moving. If there are any delays, 
they're not likely to come from the Agency. 

MS. BRANDT: We're not talking — 

SENATOR PETRIS: The accusation would be likely to 
come from the other side. 

MS. BRANDT: We're not talking about a formal court 
process for compelling discovery. 

SENATOR PETRIS: Yes, I understand. 

MS. BRANDT: We're talking about an ALJ who is 
dedicated to this proceeding, who is available at all times to 



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assist the parties with the discovery. 

And I should hope that we do not have to have formal 
written motions and counter motions in order to determine 
whether a document should have been provided. 

SENATOR PETRIS: Well, that's why it's important to 
get these ground rules firmly established, and then you can go 
on good will after that. 

MR. HIRSCH: Well, it would therefore seem very 
appropriate that the ALJ have the authority to extend that time 
for good cause. 

SENATOR PETRIS: They agreed to that; they suggested 
it. 

MR. HIRSCH: They had a specific time period, that he 
or she can't give more than a 30-day extension. So, if U.S. 
Ecology drags its feet, we're still stuck going to hearing 
without having received the documents . 

SENATOR PETRIS: You're suggesting up to 30 days? 

MR. HIRSCH: They were. 

SENATOR PETRIS: What would you — 

MR. HIRSCH: I think you need one of two things. 

Simply give the discretion to the ALJ to extend the 



22 

time for good cause in discovery disputes -- 

SENATOR PETRIS: For either side. 

MR. HIRSCH: Oh, yes. 

Or to say that the hearing begins 30 days after 
documents are provided after resolution of discovery disputes. 
One way or the other. 



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SENATOR PETRIS: You can live with that, can't you? 

MS. BRANDT: I have difficulty living with that, 
Senator, because I don't -- 

SENATOR PETRIS: I've had difficulty living with this 
hearing. 

MS. BRANDT: I don't know what an ALJ might consider 
reasonable under the circumstances, and I think in order to have 
an expedited hearing, we need to have the guidelines before the 
ALJ as to what is reasonable. 

I think it is reasonable within 60 days to resolve a 
discovery dispute, give people the documents they need, and go 
to hearing. Because with a possibility for 30-day extension, 
we now have 60 days between the date on which -- the last date 
on which the document — 

CHAIRMAN ROBERTI: Sixty days from the issuance of 
the ALJ's — 

MS. BRANDT: Sixty days between the time the 
documents should be provided and the time the hearing can start. 

So, you have that 60-day period during which to 
resolve the discovery dispute, get the documents into the hands 
of the people seeking them — 

CHAIRMAN ROBERTI: What do you have to say about 60 
days? 

MS. BRANDT: — and get ready for hearing. 

MR. HIRSCH: I think all of you who are attorneys are 
used to the other side providing you documents in response to 
discovery the day before the hearing is supposed to begin. 



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43 

SENATOR PETRIS: I was just going to say that. 

MR. HIRSCH: I mean, I think if you were indeed going 
to make these good faith efforts to provide responses quickly 
and to obtain them from U.S. Ecology, you should have no 
objection to either it being at the discretion of the ALJ, or 
saying that the hearing begins within 30 days from the time you 
succeed in getting the documents to us . 

If indeed you say that it should be possible to 
expedite quickly, then it fact it would cause no delay. 

CHAIRMAN ROBERTI: What about 30 days from the time 
that the documents get to the requesting party? 

MS. BRANDT: The problem with that, Senator, is that 
there is such a thing as a dispute which the parties never think 
is resolved. The ALJ may rule; the parties may come in and ask 
for reconsideration. They may not want to be bound by the 
decision of the ALJ, and the process can in fact drag out 
forever if the parties don't agree that whatever the ALJ says is 
correct . 

That's why I want a time limit that applies: you go 
to hearing. 

CHAIRMAN ROBERTI: I think we all agree with that, 
but we are still talking about 30 days from the date that the 
documents, according to the ALJ, should have been produced. 

Everybody's skeptical of everybody else's good faith, 
I understand that. That's why we have an ALJ who, hopefully, is 
a neutral arbitrator. Somebody has to be the neutral 
arbitrator. Certainly not me, I hope. 



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MS. BRANDT: You can be the appellate body, Mr. 



Chairman. 



[Laughter. ] 

MR. GOULD: Senator, I suppose that's reasonable. 

CHAIRMAN ROBERTI: Okay, thank you. 

SENATOR MELLO: What was his reply? 

CHAIRMAN ROBERTI : Thirty days from the date that the 
— the hearing would occur 30 days within the date that the ALJ 
says the documents should have been produced. 

MR. HIRSCH: Not from when they are produced? 

SENATOR PETRIS: Should be from when they are. 

MS. BRANDT: May I attempt to rephrase what I think 
you were trying to say, Mr. Chairman. 

Thirty days from the date on which any documents that 
the ALJ has ruled must be produced are produced. 

CHAIRMAN ROBERTI: That's right. 

SENATOR MELLO: Are produced; they're in your hands. 

MS. BRANDT: That's correct. 

CHAIRMAN ROBERTI: Everybody seems to agree to that. 
Our Secretary has it down. 

We've solved that one. 

We've solved, I think, the issue as to the Director 
being the final decision maker. 

Where are we? 

MR. HIRSCH: Two more issues, then one last one, I 
believe . 

One is the question of the hearing being on all the 



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disputed issues. My recommendation that those two words be 
removed from their draft: "remaining scientific". 

CHAIRMAN ROBERTI: What do you mean by something 
other than a scientific issue? 

MR. HIRSCH: Past experience of U.S. Ecology, for 
example, is not a scientific issue. The — how do I say it — 
the violation history, for example, would not be a scientific 
issue. 

It seems to be unnecessarily limiting. The statement 
without it would simply mean issues relating to whether or not a 
license should be granted, and that should he sufficient to 
contain the issues for the hearing. 

MS. BRANDT: Would you like me to respond? 

The difficulty with that proposal is that we are 
attempting to craft an adjudicatory hearing, not a public input 
hearing. What we've had in the past is a public input hearing, 
where if someone wants to tell endless bad stories about U.S. 
Ecology, they're free to do so. 

This is supposed to be a hearing to resolve issues 
germane to the licensing decision. The general history of U.S. 
Ecology is not germane to that. 

If there is an issue where U.S. Ecology has been 
shown not to know how to run this kind of a site, where U.S. 
Ecology does not know how to do a specific thing that they need 
to do, I don't have any problem with that issue being addressed, 
but it needs to be focused on what is the issue that we are 
talking about, not general U.S. Ecology is a bad company or has 



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been in the past. 

SENATOR PETRIS: Wouldn't the judge determine that? 

I mean, they're not going to be able to stand up and 
say, "Your Honor, this company is crummy, and we think you 
should reject the application." That's not going to fly. 

I think as each specific ingredient of the 
qualifications are considered, there'll be information on each 
one of those. And if as to one qualification there's some 
glaring defect that is specific they could point to, that should 
be submitted to the court for consideration; don't you think? 

MS. BRANDT: The problem is with the order in which 
evidence is presented. And the evidence is presented first by 
U.S. Ecology in support of the license. 

Unless we know what the specific issues are under 
which U.S. Ecology is to present evidence in its support, they 
will not able to put on their case in chief in an effective 
manner. 

That's why we need reasonably limited issues, so that 
the company that is expected to go first and produce its 
evidence knows that it's producing evidence on. 

SENATOR PETRIS: I don't understand that. They're 
applying for a particular assignment here. And they have to put 
their best foot forward and convince the court that they are 
qualified to handle this assignment and should be appointed to 
be the licensee. So, they put, you know, whatever information 
there is that's relevant. It's scientific; it's experience; 
it's whatever else fits into that. 



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They don't raise any issues there. They emphasize 
the points that will convince the judge that they should 
appointed. 

Now, if there are defects in that, it's up to the 
other side that is resisting to raise issues. And then they can 
-- the issue's joined, and then the applicant can respond. 
Isn't that how it would work? 

MS. BRANDT: I agree with that in general, Senator. 
I'm not sure I know how it would work specifically in this 
context . 

MR. HIRSCH: If I may respond for a moment. 
CHAIRMAN ROBERTI: Please do. 

MR. HIRSCH: There are standards in state law which 
were adopted from the federal regulations as to what the 
standards are for issuance of this license. Those are contained 
in 10 CFR 61.23. The state has adopted those, and that is 
really the subject for the hearing. 
The first standard is: 

"The applicant is qualified by 
reason of training and experience to 
carry out the disposal operations 
requested in a manner that protects 
health and minimizes danger to life 
or property . " 
So, the experience of this company, as to whether 
it's adequately carried out other operations, is clearly 
relevant. 



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Additionally, one of the requirements the state 
must rule on is whether they're financially qualified. 

These other standards here are all the ones that 
have to be ruled on, and those are the subject matter for the 
hearing. 

We have no objection to the Agency's proposal under 
Item Three, that the ALJ rule on whether or not the issues of 
concern are appropriate for the hearing based on what these 
standards are. So, you're not going to raise everything off 
the street, but certainly the experience of this company is 
central to the question of whether or not the license should be 
granted to them. 

So, I'm confused as to why, if we have Item Three, 
which determines that the ALJ will determine if the issues are 
appropriate, and we have standards for issuance of license 
which tells us what should be considered, how either their 
financial qualifications or their past experience could be 
irrelevant to the proceeding. 

MR. REMY: If I might add, Senator Petris, I 
believe the ALJ will have to make determinations of relevance, 
but that's all that really ought to be undertaken here, with 
the relevance being determined as to whether or not it has 
something to do with whether or not a license should be issued. 

But in advance to restrict the inquiry by narrowing 
the scope of inquiry, I believe, is what we're objecting to. 
And it would be cured by essentially removing the two words, 
"remaining scientific". 



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Is this issue resolved? 

CHAIRMAN ROBERTI: The attorney had indicated, 
however, that some aspects -- the aspects of a licensee's 
ability to perform would come before the ALJ as part — and 
they agree that these issues can come forward. 

MR. HIRSCH: Some of them. Those that relate to 
scientific matters could. 

I would presume that would not include, in their 
interpretation, financial qualifications, for example. 

CHAIRMAN ROBERTI: What about financial 
qualifications? 

MS. BRANDT: I'm sorry, Senator? 

CHAIRMAN ROBERTI: What about financial 
qualifications? 

MS. BRANDT: As the proposal is written, the 
strictly financial qualifications are not included. 

And again, we are talking about a 60-day hearing. 
And what we understood the public to want was a hearing on the 
the scientific issues — the tritium, the liner — things 
relating to health and safety; not things relating to finances. 

CHAIRMAN ROBERTI : That is more within the scope of 
my concern. 

Now, I know finances are important, but I don't 
think they're going to be conclusive as to — 

MR. HIRSCH: No, I just don't know why those — I 
mean, we can't give you all the examples now — 

CHAIRMAN ROBERTI: I'm more concerned about the 



50 
word "remaining" than I am about the word "scientific". 

I mean, frankly, the main reason why I'm here today 
is over the scientific. The whole aura of scientific 
questions, including seepage, leakage, or -- 

MR. HIRSCH: Senator, and I think — 

CHAIRMAN ROBERTI: Financial, I don't know — I may 
want some help from some of my colleagues -- but financial 
doesn't strike me — 

MR. HIRSCH: There's two things. One thing that 
has concerned this state very much is the potential liability. 
There is this concern that this company, if it doesn't have 
sufficient resources, if it abandons this site the way it 
abandoned Sheffield, would -- the state would be stuck with 
enormous expense of having to remedy the situation. 

CHAIRMAN ROBERTI: What about the liability 
question? 

MS. BRANDT: Senator, if I may be allowed to act as 
Mr. Gould's attorney in a different capacity for a moment. 

CHAIRMAN ROBERTI: Yes. 

MS. BRANDT: We are about to have him not confirmed 
simply because we're carrying this conversation on until the 
Members are gone, and I would ask this Committee to please act. 

CHAIRMAN ROBERTI: We will make sure that they come 
back. This is very important. 

If Members want to leave because this is going on, 
I mean, we all have obligations to be here. And we have to 
hear these. 






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And I'm not talking to you. I'm talking to you and 
the Members . 

These are important questions, and they're detailed 
questions. And I'm not going to be rushed — I'd love to be 
rushed. I mean, the hearing's not fun. I'd rather have lunch. 

But we have to hear these issues out. It's 
terribly important . 

I know some Members have said, "I've got to leave. 
I've got to catch a plane." What in the world are we here for? 
I mean, this is an important issue. 

I'm not lecturing you. I'm lecturing some of my 
colleagues who have been bugging me about when they can catch 
the next plane out . 

We'll bring them all back. 

MS. BRANDT: I think it may be very difficult to 
resolve within any reasonable time frame the question of do we 
need to have a hearing that is going to address all conceivable 
issues, including those that have been addressed before, 
including those that don't relate to health and safety, which 
the NRC has told us normally takes a minimum of a year-and-a- 
half and a maximum of five years, and on the average two years 
|and more. And I can't conceive of this one taking any less 
time. 

Or are we going to have a hearing that is limited 
in time, that is limited in scope, and that addresses the 
fundamental health and safety issues that I thought were of 
concern to this body? 



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I think that is the fundamental difference between 
the parties. And I'm not sure talking about that difference 
helps to resolve it. 

MR. GOULD: Senator, going issue by issue, I'm not 
going to be able to give you an answer. 

If the Governor committed to you to work with you 
on this, and it wasn't an issue that was tied to confirmation 
or the timing of it, I think he committed to you because he 
felt it was an appropriate process. So, I'm not sure I'm going 
to close down that issue by — 

CHAIRMAN ROBERT I : It is an appropriate process, 
and I remember my conversations with the Governor very 
distinctly. 

However, the question still before us is the word 
"remaining", and I don't know what that means. 

MR. GOULD: Senator, I think the effort was just to 
not bring up issues that are resolved. You know, we were 
trying to say, "Look, in narrowing the scope, let's focus on 
the issues . " 

I think through the hearings we have had to date 
regarding my confirmation, there have bene issues cited as 
being issues that are outstanding. Let's deal with those 
issues. Let's not start all over again on every issue out 
there. 

MR. HIRSCH: If I could make a suggestion there? 

If that's the case, simply substitute for the words 
"remaining scientific", the word "disputed". If it's issues 



53 



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that you say have already been resolved that no one disputes, 
I have not problem with those being kept out. But if there are 
disputed issues relevant to the issuance of the license, those 
should be dealt with. 

So how about simply taking "remaining scientific" 
out and putting in "disputed" issues? 

MS. BRANDT: If I could believe in the good faith 

of everyone who will participate in the hearing, in spite of 

I 

(the fact no one is willing to believe in my good faith, I 

wouldn't have a problem with that. 

Unfortunately, the minute you have no limitation on 

the issues, it leaves the door open to a potentially unlimited, 

i 

'uncloseable process where we go on for years. 

MR. HIRSCH: I guess my concern is, this waste 
lasts for thousands of generations. If we don't resolve all 
the important disputed issues before we start dumping the 
waste, we would have made an irreversible mistake. 

That's what I thought this was all about, to come 
up with a process to resolve all of those important disputed 
matters . 

I can't see how it's to our advantage to say, 
"Okay, we'll resolve only a third of them." 

CHAIRMAN ROBERTI: So the issue is the Agency is 
willing to discuss — to confine it to disputed, but there's a 
lack of trust between the parties as to what disputed means. 

MR. GOULD: Senator, I would agree to continue to 
talk about that area. I couldn't agree to a change in that 



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54 
area. 

I think the Governor was pretty clear in his 
instructions to me in terms of making sure we had a manageable 
process, and I think it was the same discussion he had with 
you . 

So, I don't feel at liberty, really, to change 
that. 

CHAIRMAN ROBERTI: I tend to think that the word 
"remaining" is confining. 

The issue of liability is a question which really 
jbroadens our scope here, which I'd rather not do. But I think 
the issue of scientific issues are things that our hearings 
have tried to zero in on. 

MR. HIRSCH: If I could make an inquiry. 

CHAIRMAN ROBERTI: Yes. 

MR. HIRSCH: I gather that if there is something 
that gets worked out shortly, an ALJ will have to review the 
transcript of this proceeding to see what we meant by these 
words . 

I'd like to inquire, did I hear correctly that it 
is the understanding that the term "scientific issues" would 
include the compliance record, the history, of this applicant 
at its other facilities? 

I want to make sure I understand that, because that 
seems absolutely central to the issue of whether the license 
should be granted. 

MS. BRANDT: The statement I have made said that 



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insofar as the compliance history relates directly to an issue 
that is legitimately involved in the construction of the site, 
yes. General compliance history, no. 

SENATOR PETRIS: Of this site? 

MS. BRANDT: Of this site. 

SENATOR PETRIS: So anything done on another site 
is irrelevant? 

MS. BRANDT: No, what I'm saying is, to the extent 
Iwhat they did at another site is relevant to their ability to 
^construct this site — 

SENATOR PETRIS: I think the judge would make the 
same ruling. I just think that's what the judge would do. 

CHAIRMAN ROBERTI : There ' s no reason to look into 
another site unless it is relevant to our site. 

MR. REMY: If I may point out, the Supreme Court of 
California has indicated that performance by an applicant at 
other sites is relevant to their ability to meet the required 
conditions on mitigation measures. 

So, in a sense, the courts have already established 
that that is relevant to the inquiry of whether or not the 
applicant can perform. 

SENATOR PETRIS: Well, I don't see how that could 
be kept out if you cite those cases before the — 

MR. REMY: But I just heard an effort to keep it 
out. 

MS. BRANDT: I'll repeat what I said. 

I don't have a problem with it being admitted to 



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the extent it is relevant to something at this site. 

I just have a problem with making some sort of 
general commitment that anything in the history of this 
licensee is going to be considered germane. I don't agree to 
that. 

SENATOR PETRIS: I don't think the judge would 
agree to it, either. 

CHAIRMAN ROBERTI: Nor would I, and I agree with 
Senator Petris, nor would the judge. 

We're just talking about those aspects of prior 
history that are relevant to this site. 

SENATOR PETRIS: That's right. 

CHAIRMAN ROBERTI: I will take it that everybody 
agrees to that. 

MR. REMY: I think the determination of relevance, 
again, is one that needs to be made — 

CHAIRMAN ROBERTI: That's got to be decided by the 
ALJ. We obviously cannot -- I mean, we're far afield if we try 
to define that word here today. 

Any other problems? 

MR. HIRSCH: I've got two remaining ones. 

CHAIRMAN ROBERTI: You get a short — 

SENATOR BEVERLY: It's always two. It was two a 
moment ago, and it's two again. 

CHAIRMAN ROBERTI: He gets a short amount of time 
to do it. 

MR. HIRSCH: I want to just confirm that the ALJ is 



57 



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permitted and is in fact authorized to make findings of fact 
and conclusions of law. That the Director has discretion to do 
what she wishes about that, but that the judgment to be made is 
both the findings of fact and conclusions of law. 

MS. BRANDT: I cannot agree to that, Mr. Chairman, 
because of what I indicated earlier. 

The record of this hearing will not be the entire 
administrative record. I don't see how the ALJ can make 
conclusions of law on the final issues before the Director when 
this ALJ is only reviewing this hearing and not the record of 
the previous hearings as well. And that goes back to the 
limited scope of the hearing. 

MR. GOULD: And I think those are issues we've 
addressed. 

CHAIRMAN ROBERTI: No, you can't have conclusions 
of law unless you've reviewed the entire — 

MS. BRANDT: That's why the language that we've 
used in the proposal is that the administrative law judge will 
write a written analysis of how the facts found relate to those 
issues which by law the Director must address. That is as 
close as I can come in this procedure to having conclusions of 
law. It's not a formal conclusion of law, but it's a 
discussion of what a conclusion would look like. 

MR. HIRSCH: What we are asking for is that the ALJ 
make findings of fact and conclusions of law based on the 
record before him or her. 

We are willing to accept, although we disagree with 



58 

it and reserve our right to oppose it in court, the ability of 
:he Director to rely on extra record material. But we are no 
Way at the moment indicating that — the solution being 
roposed is that she will do that, we can challenge that later. 



But the ALJ, who will hear evidence that's been subject to 
jj:ross examination and rebuttal, should be permitted not merely 



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o findings of fact, but determine whether or not, based on 
hat record, this company meets the standards for issuance of a 
license. 

Dr. Coye can overturn that and ignore it, but that 
hould be what this is about. Otherwise, it has not meaning. 

CHAIRMAN ROBERTI : I misunderstood your last 
paragraph. 

MR. HIRSCH: The final conclusions of law will be 
made by Director Coye, and according to their method, based on 
this record and extra record material . 

We object to that, but if that is the comprise 

! 

that's worked out here, that's how it will be and we would then 
challenge its legality later. 

MS. BRANDT: Mr. Chairman, I'm very hesitant to 
interrupt Mr. Hirsch, but he is making a fundamental 
fnisrepresentation . 

We have never, ever stated that Dr. Coye would use 
material beyond the record. 

What we have said is that Dr. Coye would use 
material both from this record and from the record that has 
already been made in the earlier public record hearings. 



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CHAIRMAN ROBERTI: You're stipulating to that. 

MR. HIRSCH: I disagree with it as a matter, but in 
terms of the compromise here, I say fine, let them do that. 

CHAIRMAN ROBERTI: Very good. 

And Dr. Coye makes her decision based on the record 
Ithat — 

MR. HIRSCH: Whatever record she wants to look at. 

CHAIRMAN ROBERTI: — that she has. And you're 
free to challenge it. 

MR. HIRSCH: Right. 

My point is that the ALJ should be free to make his 
or her conclusions of law and findings of fact based on the 
record before that ALJ. That's relevant — I mean, if we — 

SENATOR PETRIS: The Director will be free to look 
at the — 

CHAIRMAN ROBERTI : The Director has to look at the 
complete, will look at the complete record. 

MR. HIRSCH: That's right, but we would like the 
ALJ to draw conclusions from the facts. We don't understand 
what the hearing's about otherwise. 

MS. BRANDT: I think that's what the proposal says, 
Mr. Chairman. 

CHAIRMAN ROBERTI: I think we're all in agreement. 

MR. HIRSCH: That the ALJ can issue conclusions of 
law. 

CHAIRMAN ROBERTI: No, not that the ALJ can issue; 
that the Director can issue conclusions of law. 



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MR. HIRSCH: And the ALJ cannot. 

CHAIRMAN ROBERTI: The ALJ cannot because the ALJ 
only looks at the truncated record. 

MR. HIRSCH: Cannot issue conclusions of law based 
on that record, and then Dr. Coye can make her conclusions of 
ilaw based on a larger record? 

SENATOR PETRIS: It'll be limited. 

i 

CHAIRMAN ROBERTI: That doesn't cause me a problem. 

MS. BRANDT: I think that would be extremely 
prejudicial, Mr. Chairman. 

MR. HIRSCH: That's the point, I guess. 

If the judge has sat through a six-month 
proceeding, and heard witness after witness, cross examination, 
rebuttal, all the stuff that Dr. Coye will not hear, and then 
makes conclusions of fact [sic], and can't then say, "Based on 
this fact, I think this dump should go or not," what is the 
purpose of this? 

MS. BRANDT: This proposal makes it perfectly clear 
that the ALJ can do that. We just don't call them conclusions 
of law. 

SENATOR PETRIS: What do you call them? 

MS. BRANDT: I read the language earlier: 
"... a written analysis of how the 
facts found relate to those issues 
which, by law, the Director must 
address 
That's about as close to a conclusion of law as you can have 



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without calling it one, Senator Petris. 

SENATOR PETRIS: Well, if you're that close, why 
don't you just call it that? What's the harm? 

MS. BRANDT: Because I think there would be 
substantial prejudice in calling it that when in fact the ALJ 
does not have the entire record. 

MR. HIRSCH: May I make a quick suggestion? 

CHAIRMAN ROBERTI: Yes. 

MR. HIRSCH: The statement actually says that the 
ALJ shall submit findings of fact and, and then goes on written 
analysis, and the Director then is going to do something. 

Why not simply say that the ALJ submits findings of 
fact and conclusions of law, and then the Director makes up her 
mind as to what to do — 

CHAIRMAN ROBERTI: They don't want to use the words 
"conclusions of law". We're at an impasse there. They want to 
use a paragraph. 

Why can't we use something — why can't we call it 
what you're saying, and then put, colon, "analysis of law"? 

MR. REMY: Legal recommendations. 

CHAIRMAN ROBERTI : So we don ' t use the words 
"conclusions of law". 

MS. BRANDT: Would you repeat your proposal, Mr. 
Chairman? 

CHAIRMAN ROBERTI: Your paragraph, put a colon 
after your paragraph, something "to wit: an analysis of law". 

MS. BRANDT: That's already in there. 



62 

SENATOR PETRIS: It's already in there. 

CHAIRMAN ROBERTI: I know. You give it a briefer 
definition so that in any briefs that are filed, you can use 
the words "analysis of law". 

MS. BRANDT: I have no problem with that. 

CHAIRMAN ROBERTI: It sounds more formal. 

MS. BRANDT: Fine. 

MR. REMY: Yes. 

CHAIRMAN ROBERTI: No problem, no problem. Fine, 
okay. 

MR. HIRSCH: I think we're okay on that. 

I believe the fundamental purpose of this is to 
have a proceeding where the outcome is not preordained; where 
there is an independent, fair, neutral trier of fact. 

We understand that Dr. Coye can overturn or ignore 
those determinations, but that this proceedings be before an 
independent, unbiased, trier of fact. 

And it seems to us very important that the 
Legislature be involved in discussions with the Agency to make 
sure that that trier of fact is someone that's essentially 
Jacceptable to both, that would provide confidence in the 
outcome . 

SENATOR PETRIS: Do you know of any that are not 
acceptable? 

MR. HIRSCH: Individuals? 

SENATOR PETRIS: Not individuals out there in the 
world, but from a panel of administrative law judges? 



63 

MR. HIRSCH: Well, we think that it may be useful 
to have someone who's not an employee of the State of 
California, given how this is so politicized within the state, 
and that it may be useful for some effort to be made, you and 
the Agency jointly, to come up with that independent person. 

MS. BRANDT: Mr. Chairman, the Agency has given 
considerable thought to the idea that it should be someone 
employed not by the State of California. 

The problem with making a commitment on that now is 
that we don't know what's available, and we don't know what can 
be done in terms of getting someone within the time-frame. 

We will make every effort to get a very neutral — 

CHAIRMAN ROBERTI : I tend to agree it * s best out of 
the state, but it's difficult. 

MR. HIRSCH: May we suggest the following: simply 
a commitment of the Agency to consult with the leadership of 
the Legislature on the ALJ? 

CHAIRMAN ROBERTI: Our advice and counsel, but the 
decision is still yours. 

MR. GOULD: That's satisfactory. 

CHAIRMAN ROBERTI: Thank you. 

I think we have gone through everything. This is 
on tape. It would be impossible to put all the agreements to 
paper before we take up Mr. Gould. 

Consequently, I'm going to ask the transcript be 
written. Assuming we're all men and women of good faith, we 
will adjust to those transcripts. 



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I think a motion on Mr. Gould now is appropriate. 

SENATOR MELLO: Mr. Chairman, before a motion is 
made, my understanding is, we have not modified the term 
"remaining" or "scientific"; is that correct? 

MR . REMY : No , we haven ' t . 

MS. BRANDT: That's correct, Senator. 

SENATOR MELLO: Mr. Chairman, my understanding is 
that we have not modified the term "remaining" in the first 
opening paragraph, "remaining scientific issues", where 
Mr. Hirsch is advocating that we remove the word "remaining 
scientific" and enclose "disputed issues". 

Is that not acceptable to the Agency? 

MS. BRANDT: That is not acceptable, Senator. 

I could propose to change the word "remaining" to 
"significant", which was what we had intended. I don't know 
that that would be any more pleasant for the proponents . 

SENATOR MELLO: That has not been resolved; is that 
correct? 

SENATOR PETRIS: How about "relevant"? Let the 
judge decide -- 

MS. BRANDT: That's — the problem then is, you 
can't limit the hearing at all in time, because that allows a 
complete rehearing of everything that's already been heard, 
whether or not it is still in significant dispute. And that 
allows endless delay and foot-dragging by people who just wish 
to do that. 

MR. HIRSCH: If I may make a suggestion. 



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Then let us call it "significant disputed issues", 
so that the tiny, insignificant matters that you are worried 
about would not be raised, but that any significant issue 
relevant to the issuance of this license would be able to be 
discussed. 

SENATOR PETRI S: Well, now you've got one word from 
each of you. 

MR. HIRSCH: Solomon would be happy. 

MR. GOULD: I'm afraid it just expands the scope. 
And, you know, one of the commitments we had in trying to work 
this out was to keep the parameters within a reasonable time- 
frame. I'm afraid that it just begs that. 

MR. HIRSCH: And the fundamental thing that the 
Committee has been trying to do is make sure there's a process 
where the significant issues about this facility get resolved 
prior to taking an irreversible action. 

MR. GOULD: That's also the commitment the Governor 
has made . 

SENATOR PETRIS: I have a suggestion. 

I'd like to see "dispute" in there, but an issue, 
by definition, is something in dispute. 

Counsel, you just said "significant issues". Are 
you suggesting issues — an issue isn't an issue unless there's 
two sides to it. So by definition, you're saying "disputed". 

If it's agreed upon, it's not an issue anymore; 
isn't that true? 

MR. REMY: Yes. 



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SENATOR PETRIS: So why don't we accept their 
recommendation of "significant" issues? 

MS. BRANDT: We still have a dispute about whether 
or not to remove the word "scientific", to try to get back to 
the liability and all of those issues. 

CHAIRMAN ROBERTI: What did you say? I missed what 
you said. 

MS. BRANDT: I thought we had reached agreement 
that those nonscientif ic issues would not be covered by this 
hearing. I think we're going over ground that -- 

MR. GOULD: I thought we had concluded, maybe I'm 
wrong, that "scientific" remained in there, and we just 
discussed what the elements were within "scientific", and 
recognize that it was broader and — in terms of its 
'application. And I thought that was a resolved issue. 

SENATOR PETRIS: I thought when we had a reading of 
the extract from the law, that it wasn't limited just to that. 
It covers some of the other things, like by training, by 
statute. 

MR. HIRSCH: Why don't we then refer to those 
standards of — 

SENATOR PETRIS: Just use the code. 

MS. BRANDT: I don't deny that those issues are 
material to the licensing decision. 

The point of this process was to deal with 
scientific, health and safety issues, not with the liability, 
not with the financial condition of the company. 



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67 

There have been ample public hearings to deal with 
those. And those are not the crucial issues that I thought 
this Committee was worried about. 

MR. HIRSCH: What you've just heard is a statement 
that there are other material issues for the issuance of the 
license that the Agency wishes to exclude from resolution by 
the adjudicatory proceeding. 

It seems to me that the fundamental — 

CHAIRMAN ROBERTI: How about "scientific and 
remaining disputed issues", or "remaining significant disputed 
issues"? So we do not re-open any other disputed issue. 

MS. BRANDT: I think that does everything they 
want, Senator. I don't think that limits it in the slightest. 

In their opinion, it is a significant remaining 
disputed issue whether or not there will be liability on the 
state, whether or not U.S. Ecology has enough money to last 30 
years . 

I'm not free to agree that those issues will be 
heard in this hearing. The hearing could not be held within 
this time-frame. 

MR. HIRSCH: If I may ask, an inquiry? 

I understood there was a Legislative Counsel's 
opinion that an adjudicatory hearing is required for the 
issuance of a license. If that's true, then it's required on 
the issues material to the issuance of the license. And 
therefore, it's required to deal with all of the material 
issues that are part of the standards for the issuance of the 



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68 
license. 

Isn't that where we are? Why we're here? 

CHAIRMAN ROBERTI: That's why we're here, yes. 

i 

SENATOR BEVERLY: That's only part of it, Mr. 

jChairman. If I may make a comment. 

Leg. Counsel says an adjudicatory hearing is 
necessary. Counsel for the Department disagrees with that. 

We're trying to come somewhere in between those two 
people. 

It seems to me they've made a good faith effort — 
I'm not accusing you of bad faith — but I wonder if you really 
want to resolve this issue. 

MR. HIRSCH: I'm trying, and I believe by our 
willingness — 

SENATOR BEVERLY: I'll accept that, but it's got to 
happen soon. 

CHAIRMAN ROBERTI: If it doesn't happen soon, the 
whole thing becomes moot. 

I'm inclined to go with "scientific issues". 

MR. HIRSCH: Just — if that's done — 

SENATOR CRAVEN: Mr. Chairman, why don't we do that 
and let the good guys win one? 

MR. REMY: I think the proposal that, at least I 
thought, was now being considered was "and remaining disputed 
issues " . 

MS. BRANDT: That has been rejected by us . It's 
not under consideration at this end of the table. 



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MR. HIRSCH: See, my problem becomes, I can't 
conceive of how an ALJ is going to know whether or not the 
violation history at another site is relevant to a scientific 
issue associated with Ward Valley. And I do think that that is 
absolutely a critical matter. 

CHAIRMAN ROBERTI: Violation issue, I don't quite 
understand? 

MR. HIRSCH: The compliance history of the company 
with regulations at the other sites that it's operated, I don't 
understand how an ALJ will be able to say, "Yes, that is 
relevant to a scientific issue associated with Ward Valley". 

Whereas, it's clearly one of the very central 
questions as to whether or not this license should issue and 
the facility can be operated safely. 

MS. BRANDT: Mr. Chairman, again, I think you've 
heard all the arguments on this issue. 

CHAIRMAN ROBERTI: I don't want to preclude the 
operation of the site safety. That has to be part of this. 

MR. HIRSCH: Why don't we do that, then? 
"Significant issues related to safety". 

CHAIRMAN ROBERTI: "Scientific and safety issues". 

MS. BRANDT: That's not a problem. 

MR. HIRSCH: That's with the understanding that he 
violation history would — 

MS. BRANDT: That's with the understanding that the 
violation history, to the extent it is relevant and material to 
those issues, will be legitimate. 



70 

CHAIRMAN ROBERTI: Or "scientific or safety 
issues " . 

MS. BRANDT: All right. 

CHAIRMAN ROBERTI: Okay. 

SENATOR CRAVEN: Move Mr. Gould. 

CHAIRMAN ROBERTI: Senator Craven moves the 
confirmation of Russell Gould as Secretary of the Agency — 

SENATOR MELLO: On the motion, Mr. Chairman. 

CHAIRMAN ROBERTI: — of Health and Welfare. 

And Senator Mello on the motion. 

SENATOR MELLO: I think we're acting because the 
clock keeps rolling. And I'm concerned about, we've reached a 
lot of agreement here today, and I congratulate both sides for 
moving to try to resolve this issue. 

Senator Beverly says that our Legislative Counsel's 
opinion was put forth, and then the attorney for the Department 
came forth with her effort, a good faith effort, but she 
submitted no written opinion saying that our opinion from our 
Department was flawed. 

What I'm concerned about, Mr. Chairman, is that 
this goes on the Floor. Mr. Gould is passed out. 

What I was hoping for was that we'd get these 
amended, proposed proposals in writing so that we could put 
them in the file and print them in the Journal. 

I know time is short — 

CHAIRMAN ROBERTI: I agree. I'd love to do that, 
but I mean, it's impossible. 



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The reason why we've reached any kind of a 
narrowing of the path is that we're working with a deadline. 
Unfortunately, if we do that, Mr. Gould will be deadlined. 

SENATOR MELLO: What I would hope — 

CHAIRMAN ROBERTI: The best I can say is, we're 
dealing with parties of good faith, and fortunately or 
unfortunately for Dr. Coye, she's still around. 

I'm sorry to have made that observation, but that's 
reality. 

SENATOR MELLO: Mr. Chairman, on that point, may I 
ask, then, that the Rules Committee be presented from Mr. Gould 
a modified version of you proposal as agreed to here today so 
it could be printed in the Journal, and then Mr. Hirsch, if 
your side would present a written modified version from your 
perspective to be printed in the Journal. At least we'd have 
both. 

I don't expect them to be agreeable to both sides, 
but I think it's going to come back -- 

SENATOR CRAVEN: Isn't that all part of the record 
now, Henry? 

SENATOR PETRIS: They're both the same. The way 
they come out now, they both should be the same. 

MS. BRANDT: I hope they will both be the same. 

Mr. Chairman, given that I have not had a lot of 
sleep in the last 48 hours, I would ask that I be given a 
transcript of this hearing before I'm asked to produce a 
modified version. 



72 

MR. HIRSCH: We would also. 

CHAIRMAN ROBERTI: I think that's only fair for all 
sides . 

SENATOR PETRIS: We can have it printed in the 
Journal later. 

CHAIRMAN ROBERTI: We have a transcript; it's just 
nobody can read it . 

COURT REPORTER: I beg your pardon? 
[Laughter. ] 

CHAIRMAN ROBERTI: I'm sorry, my apologies. 

MS. BRANDT: Will the Chair accept an amendment 
that only expert court reporters can read it. 

CHAIRMAN ROBERTI: Absolutely. 

SENATOR CRAVEN: Mr. Chairman, may I call for the 



question? 



CHAIRMAN ROBERTI: Yes, the question's before us. 

Secretary will call the roll. 

SECRETARY WEBB: Senator Beverly. 

SENATOR BEVERLY: Aye. 

SECRETARY WEBB: Beverly Aye. 

Senator Mello. 

SENATOR MELLO: No. 

SECRETARY WEBB: Mello No. 

Senator Petris. 

SENATOR PETRIS: Aye. 

SECRETARY WEBB: Petris Aye. 

Senator Craven. 



73 



SENATOR CRAVEN: Aye. 

SECRETARY WEBB: Craven Aye. 

Senator Roberti. 

CHAIRMAN ROBERTI: Aye. 

SECRETARY WEBB: Roberti Aye. 

CHAIRMAN ROBERTI: The vote is four to one; 
confirmation is recommended to the Floor. 

Congratulations . 

[Thereupon this portion of the 
Senate Rules Committee hearing 
was terminated at approximately 
2:15 P.M. ] 

--00O00 — 



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74 



CERTIFICATE OF SHORTHAND REPORTER 



I, EVELYN J. MIZAK, a Shorthand Reporter of 
the State of California, do hereby certify: 

That I am a disinterested person herein; 
that the foregoing Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel 
or attorney for any of the parties to said hearing, nor in 
any way interested in the outcome of said hearing. 



hand this 



IN WITNESS WHEREOF, I have hereunto set my 
ft 



i — 



day of April, 1992 



c 



s 



V f/ EVELYN J: MIZA$) 

Shorthand Reporter 



194-R 

Additional copies of this publication may be purchased for $4.75 per copy plus 
current California sales tax. 

Senate Publications 
1 1 00 J Street, B-1 5 
Sacramento, CA 95814 

Make checks payable to SENATE RULES COMMITTEE. 

Please include Senate Publication Number 194-R when ordering. 



HEARING 

SENATE RULES COMMITTEE 

STATE OF CALIFORNIA 




STATE CAPITOL 

ROOM 113 

SACRAMENTO, CALIFORNIA 

WEDNESDAY, APRIL 22, 1992 
2:17 P.M. 



documents £ pT 

Ay 2i mz 



aCQ 



196-R 



SENATE RULES COMMITTEE 
STATE OF CALIFORNIA 



HEARING 



STATE CAPITOL 
ROOM 113 
SACRAMENTO, CALIFORNIA 



WEDNESDAY, APRIL 22, 1992 
2:17 P.M. 



Reported by: 



Evelyn J. Mizak 
Shorthand Reporter 



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APPEARANCES 

MEMBERS PRESENT 

SENATOR DAVID ROBERTI, Chairman 

SENATOR WILLIAM CRAVEN, Vice Chairman 

SENATOR ROBERT BEVERLY 

SENATOR NICHOLAS PETRIS 

SENATOR HENRY MELLO 

STAFF PRESENT 

CLIFF BERG, Executive Officer 

PAT WEBB, Committee Secretary 

RICK ROLLENS, Consultant on Bill Referrals 

NANCY MICHEL, Consultant on Governor's Appointments 

ALSO PRESENT 

DONALD J. VALPREDO, Member 
California Horse Racing Board 

MAURA KEALEY, Legislative Advocate 
Service Employees International Union 

RUDOLFO C. AROS, Attorney 
Sacramento 

MOLLY COYE, M.D., Director 
Department of Health Services 

SENATOR MARIAN BERGESON 

SENATOR REBECCA MORGAN 

DOUG HITCHCOCK, Legislative Advocate 

California Association of Hospitals and Health Systems 

DENNIS FLATT, Legislative Advocate 
Kaiser Permanente 

MARK DIAZ, M.D. 

Chicano-Latino Medical Association of California 

Latino Health Policy Council 



Ill 



APPEARANCES (CONTINUED) 

BIRT HARVEY, M.D., Former President 
American Academy of Pediatrics 

CARL SMITH, President 

California Conference of Local Health Officers 

OPHELIA LONG, Member 

Board of Directors 

California Association of Public Hospitals 

and Chief Executive Officer, 

Highland Hospital 

SISTER ELIZABETH JOSEPH KEAVENEY, D.C., President/CEO 
St. Francis Medical Center 
Lynwood, California 

PATRICIA SALBER, M.D., President-Elect 
American College of Emergency Physicians 

HODA ANTON-CULVER, Ph.D., Director 
Cancer Surveillance Program of Orange County 
Epidemiology Program, Department of Medicine 
U.C. Irvine 

JOYCE LASHOF, M.D., President 

American Public Health Association, and Dean Emerita 

School of Public Health 

University of California, Berkeley 

JOHN DUNN-MORTIMER, Legislative Advocate 
AIDS Project Los Angeles 

HELYNE MESHAR 

AIDS Project Hollywood 

City of West Hollywood 

LAURIE McBRIDE, Executive Director 
LIFE AIDS Lobby 

BRENT BARNHART, Legislative Advocate 
Blue Cross 

BETH CAPELL, Legislative Advocate 
California Nurses Association 

ARNOLDO TORRES, Legislative Advocate 

25 California Hispanic Health Care Association 

26 DIAN KISER, Legislative Advocate 
American Heart Association 

27 

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IV 



APPEARANCES (CONTINUED^ 



RICHARD ANDREWS, Ph.D., Director 
Office of Emergency Services 

CLARENCE S. AVERY, M.D., Member 
Medical Board of California 
Division of Medical Quality 



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INDEX 

Page 
Proceedings 1 

Governor's Appointees: 



DONALD J. VALPREDO, Member 

California Horse Racing Board 1 

Background and Experience 1 

Questions by CHAIRMAN ROBERTI re: 

Participation of Minorities 1 

Union Contracts at Satellite Facilities 2 

Witnesses with Concerns: 

MAURA KEALEY, Legislative Advocate 

Service Employees International Union 3 

State Law Requirement of Contract 3 

RUDOLFO AROS, Attorney 

Sacramento 4 

Lack of Minority Stewards 4 

Consideration of Ex-jockeys for 

Steward Appointments 5 

Questions by SENATOR PETRIS re: 

Lack of Grievance Procedure 5 

Senate's Understanding of Union Procedures 

when Satellite Wagering Facilities Were 

First Established in State 6 

Attorney General ' s Opinion 7 

Statements by SENATOR MELLO re: 

Lack of Ethnic and Gender Balance 

on Board 8 

Motion to Confirm 9 

Committee Action 10 



VI 



MOLLY COYE, M.D., Director 

Department of Health Services 10 

Introduction by SENATOR MARIAN BERGESON 10 

Letter in Support from Women's Legislative 

Caucus 11 

Introduction by SENATOR REBECCA MORGAN 11 

Educational and Training Background 12 

Work for Oil Chemical Atomic Workers Union 13 

Internship and Residency 13 

Experience 13 

Founding of Occupational Health Clinic 

at San Francisco General Hospital 13 

Medical Officer for National Institute of 

Occupational Safety and Health 13 

Experience in New Jersey 14 

Professional Activities 14 

Goals for Department 15 

Need to Balance Demands with Fewer Resources 16 

Prevention as Key Building Block 16 

Expansion of Access to Health Care 17 

Streamlining and Consolidating Services 17 

Statements by SENATOR MELLO re: 

Draft Response on Ward Valley Adjudicatory 

Hearing 18 

Legislative Counsel and Opposition 
Requesting Time to Evaluate Department ' s 

Response 18 

Question on Hearing Procedure 18 

Discussion 18 



Vll 



Witnesses in Support: 

DOUG HITCHCOCK, Legislative Advocate 

California Association of Hospitals and 

Health Systems 20 

DENNIS FLATT, Legislative Advocate 

Kaiser Permanente 21 

MARK DIAZ, M.D. 

Chicano Latino Medical Association of California 21 

Meetings with Various Coalitions 22 

Support for Preventative Medicine Initiatives 22 

BIRT HARVEY, M.D., Former President 

American Academy of Pediatrics 23 

Appointee's Work as Health Commissioner 

in New Jersey 23 

Health Start Program 24 

New Jersey Moms 25 

Practical Innovations 26 

Questions by SENATOR PETRIS re: 

Reduction of Prevention Activities, i.e., 
Cancer Registry and Prop. 99 Transfer 27 

Expression of Displeasure over Transfer 

of Funds 28 

CARL SMITH, President 

California Conference of Local Health Officers 29 

Appointee's Willingness to Work with 

CCLHO on Public Health Issues 29 

Qualifications and Experience 29 

Support from Alameda County Health Care 

Services Agency 30 

Questions by SENATOR PETRIS re: 

Work with Lung Association 30 

Department's Cancellation of Contract 31 



Vlll 



Cancellation Due to Retribution 

for Lawsuit 31 

Transfer of Monies Out of Prop. 99 

Education Campaign Fund 31 

OPHELIA LONG, Director/CEO 

Highland General Hospital 

California Association of Public Hospitals 33 

Positive Leadership and Vision 33 

Support for Various Programs 34 

SISTER ELIZABETH JOSEPH KEAVENEY, President/CEO 

St. Francis Medical Center 

Lynwood, California 35 

Commitment to Access to Health Care 35 

Commitment to Prevention 36 

PAT SALBER, M.D., President-Elect 

California Chapter 

American College of Emergency Physicians 37 

Emergency Departments as Source of Primary 

Care 37 

Interest in Prevention 38 

HODA ANTON-CULVER, Ph.D., Director 

Epidemiology, U.C. Irvine 

Cancer Surveillance Program of Orange County 39 

Background 39 

Cancer Surveillance Program and Cancer 

Registry 40 

Going after Federal Funds for Cancer 

Research, Control and Prevention 41 

Urge Confirmation 41 

Questions by SENATOR MELLO re: 

Relationship between Smoking and 

Cancer 42 



IX 



Feelings on Department's Transfer 
of Money from Prop. 99 

Innovative Solutions to Save 
Needed Projects 

Communication to Governor or Director 
Over Transfer of Funds 

JOYCE LASHOF, M.D., Dean Emerita 
School of Public Health 
U.C. Berkeley 

Director's Unique Qualifications 

Primary Focus is Access to Care 

Urge Confirmation 

Letter from DR. LESTER BRESLAU, Former Dean 
School of Public Health, U.C.L.A. 

JOHN DUNN-MORTIMER 

AIDS Project Los Angeles 

Two Budget Neutral Programs 

Subsidization of Health Insurance 
Premiums 

Home Health Care 

Partnership with Private Nonprofit 
Organizations 

Urge Confirmation 

HELYNE MESHAR 

AIDS Project West Hollywood 

City's Unique Population 

Support for Confirmation 

Adult Day Health Care Program 

LAURIE McBRIDE, Executive Director 
LIFE AIDS Lobby 

Support for Confirmation 

Commitment to Community Involvement 



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Access to Ryan White Care Act Funds 53 

HIV Consortia 53 

BRENT BARNHART, Legislative Advocate 

Blue Cross of California 55 

Director's Work and Involvement with 

Large Private Insurance Companies 55 

Support for Confirmation 55 

BETH CAPELL, Legislative Advocate 

California Nurses Assocciation 56 

Urge Confirmation 56 

Support for Central Role of Nursing 56 

Statement by CHAIRMAN ROBERTI re: 

Support Letters from Health Net and 

California Association of HMOs 56 

Witnesses with Concerns; 

ARNOLDO TORRES, Legislative Advocate 

California Hispanic Health Care Association 57 

Concern with 10/27/91 Interview in 

Los Angeles Times 57 

Concerns Association Had Up Until February 58 

Lack of Association's Involvement in 
Consultation Process 58 

Concern with Outreach Programs 58 

Since February, More Open Dialogue with 

Department 59 

Commitment to Farmworkers 59 

Desire of Association to Contribute and 

Participate in Decisions of Department 61 

Questions by SENATOR MELLO re: 

Need for Flexible Hours in Clinics 

Serving Farmworkers 62 



XI 



Need for Outreach Program to Inventory 

Family Health Needs 63 

AIDS in Farmworker Population 64 

Questions by SENATOR PETRIS re: 

Problems with Discrimination or Affirmative 
Action in Department 65 

Lawsuits by Black Employees 66 

DIAN KISER, Legislative Advocate 

American Heart Association 67 

Respect for Director's Credentials 67 

Refusal to Sign Media Contract under 

Proposition 99 67 

Cancellation of Contract with American 

Lung Association 68 

Withholding of Scientific Research Report 68 

Reluctance to Release Data on Tobacco Use 68 

Concern with Reduction or Elimination 

of Funding at U.C. San Diego 68 

Threats of Funding Cuts to Organizations that 

Oppose Prop. 99 Funding Transfers 69 

Request to Defer Confirmation until Problems 

Are Remedied 69 

Questions by CHAIRMAN ROBERTI re: 

System for Equitable Distribution of Dollars 

to Community Organizations for Health Care 7 

Cooperative Agreements between Feds 

and States 70 

Consensus Agreement Among Primary Care 

Clinics 70 

Publish Established Funding Criteria 71 

Maintain Continuing Dialogue in Allotment of 
Contracts and Services 71 



Xll 



Plans to Expand Health Care Access with 
Shortening Budgets 

Restructuring System 

Questions by SENATOR MELLO re: 

Extent of Consultation with Governor over 
Prop. 99 Funding Shifts 

Statement by CHAIRMAN ROBERTI re: 

Public's Vote for Tobacco Education 
Programs in Passage of Prop. 99 

One Major Purpose of Initiative to Pay 
for Health Care for Medically Indigent 

Services Targeted 

Major Parts of Program Still Intacct 

Personal Responsibility for Cutting Media 
Campaign 

Augmentation of Contract for Media Outreach 
with American Lung Association 

Response by SENATOR PETRIS 

Questions by SENATOR PETRIS re: 

Suppression of Research Reports 

Legislative Offices Told not to Answer 
Questions on Prop. 99 

Questions by SENATOR MELLO re: 

Responsibility to Transfer Funds from 
Prop. 99 

Unusual to Start New Programs in Year 
of Budget Crises 

Managed Competition in Health Care 

Governor's Voluntary Health Plan 



72 
73 



75 



75 

77 
78 
78 

78 

79 
80 

81 
81 



84 

85 
86 
86 



Xlll 



Questions by SENATOR PETRIS re: 

Universal Health Care Bill Redirects 

Monies 89 

Commitment to Actively Seek Solution to 

Universal Health Care Access 90 

Reports on Canadian System 90 

Possibility of Merging San Francisco's 
California Children's Services Office with 
Sacramento's Office 91 

Status of HESIS, funded by Cal-OSHA, 

Established by SB 495 of 1985 93 

Personnel Actions 94 

Cancellation of Public Discussion in San 

Francisco over Prop. 99 Fund Redirection 96 

First Priorities on Use of Additional Money 98 

Impressed with Director's Credentials 99 

Statement by CHAIRMAN ROBERTI re: 

Forty-Three Letters in Support 100 

Statements by SENATOR MELLO re: 

Hold up Confirmation until Adjudicatory 

Hearing Documents Can Be Analyzed 101 

Discussion 101 

Motion to Put Over Confirmation 103 

Committee Action 103 

RICHARD ANDREWS, Ph.D., Director 

Office of Emergency Services 103 

Background and Experience 103 

Questions by CHAIRMAN ROBERTI re: 

Preparedness in Event of Big Earthquake 

Catastrophe 105 



XIV 



Motion to Confirm 

Questions by SENATOR PETRIS re: 
View on Petris Legislation 
Proposed Changes to Fire Service 
Incident Command System 
Mutual Aid and OES Staffing Hours 
FIRESCOPE Program 

Committee Action 

CLARENCE AVERY, M.D., Member 
Medical Board of California 
Division of Medical Quality 

Motion to Confirm 

Committee Action 
Termination of Proceedings 
Certificate of Reporter 



106 

108 
108 
109 
110 
111 
112 

113 
113 
114 
114 
115 



1 

P-R-O-C-E-E-D-I-N-G-S 
— 00O00-- 

CHAIRMAN ROBERTI: Next are Governor's appointees, 
and we will be taking off with Donald J. Valpredo, Member of the 
California Horse Racing Board. 

Mr. Valpredo. 

MR. VALPREDO: Thank you, Senator. Good afternoon. 

CHAIRMAN ROBERTI: We will ask you what we ask all 
the Governor ' s appointees , and that is why you feel you ' re 
qualified to assume this position? 

MR. VALPREDO: Thank you. 

I've been a thoroughbred breeder and owner of race 
horses in the State of California since 1966. My family has 
been breeding racing horses since 1944, so I bring to the Horse 
Racing Board a large background of expertise in the daily 
operations of thoroughbred breeding and racing. 

CHAIRMAN ROBERTI: Thank you. 

Is there any discussion or debate? Is there any 
opposition in the audience? 

Let me ask you a couple questions. There's been 
some progress toward the inclusion of persons of ethnic 
backgrounds for participation in the — inclusion of positions 
on the Horse Racing Board. 

Is that the case? Do you have a policy to work on 
that? 

MR. VALPREDO: Well, I believe that I'm an inclusion. 
I'm a 100 percent Italian boy. 



2 

CHAIRMAN ROBERTI: Well, that's nice. 

[Laughter. ] 

CHAIRMAN ROBERTI: I mean specifically probably like 
Hispanics and Blacks . 

MR. VALPREDO: Senator, if you're regarding [sic] to 
the appointment to the Horse Racing Board, or are you directing 
that question to the staffing of the Horse Racing Board? 

CHAIRMAN ROBERTI: Staffing, stewards. 

MR. VALPREDO: Stewards in particular? 

CHAIRMAN ROBERTI: Yes. 

MR. VALPREDO: One of the first assignments I had was 
on the Stewards Committee that I was appointed to. I was a 
member of that committee. I am now the Chairman of that 
committee, of the Stewards Committee. 

We worked very hard, and the past Chairman, in 
designating the stewards for 1992. We tried to keep in balance 
seniority, knowledge of the industry, and we now have a new 
position of associate stewards, where we're bring up into the 
ranks people of Hispanic or Black backgrounds . 

CHAIRMAN ROBERTI : So you do have an active policy in 
that regard? 

MR. VALPREDO: Yes, Senator, we do. 

CHAIRMAN ROBERTI: One other issue I have been asked 
to asked you a question on is a recurring one with the Horse 
Racing Board, and that's regarding union organization at the 
satellite wagering facilities. 

We received a letter on April 20th from the Service 



3 

Employees International Union asserting that the statute, which 
is Section 19608.4 of the B&P Code, requires that the Board 
close all satellite wagering facilities if there is not a new 
contract signed with the race track contractors for parimutual 
clerk services. 

Is that the Board's understanding, or what is the 
Board's policy in the case there is no contract signed? 

MR. VALPREDO: I — I'm not able to answer that 
question on the Board's policy. 

The — I believe that those kind of affairs should be 
left between the labor and management to a certain level, and 
hoping that they can resolve any difference that they have. I 
think the Horse Racing Board should not interfere and show any 
favor to either management or labor. 

I — that is certainly not my area of expertise. 
That's why there's some staff from the Attorney General's Office 
on — on our Board. And perhaps that's why they keep her right 
on my left. 

CHAIRMAN ROBERTI: I think SEIU wants to come up and 
speak to this point, so why don't you come on up. Identify 
yourself . 

MS. KEALEY: Thank you very much. 

Maura Kealey, Service Employees International Union. 

Very briefly, just to draw the Committee's attention 
and the appointee's, that California state law requires that 
there be an agreement between the union and the operator of the 
satellite facility. So, it's within the jurisdiction of the 



4 
Horse Racing Board to enforce the law. 

The question really doesn't go to interfering in 
relationships between union and labor, but simply enforcing the 
law as it is in effect in California today. 

CHAIRMAN ROBERTI: Very good. 

Senator Petris. 

SENATOR PETRIS: Did we finish that subject? 

CHAIRMAN ROBERTI: Do you want to continue on the 
subject? 

SENATOR PETRIS: No, I had another. 

CHAIRMAN ROBERTI: Is anybody else here on that 
subject of satellite wagering? On the previous issue? Then 
please come forward, and then Senator Petris. 

MR. AROS: Mr. President, Members, my name is Rudolf o 
Aros. I'm an attorney here in Sacramento, and for the past few 
years, I've been actively involved in issues relative to 
affirmative action on behalf of various organizations, 
particularly state employees, and the issue with respect to the 
actions of the California Horse Racing Board has been brought to 
my attention, and I'm glad that you raised that issue here. 

I just wanted — I don't have any particular 
objection to this candidate or the other candidate for 
appointment to the Board, but I do think that it's very 
important for this body to bring to their attention the fact 
that there are no minority stewards appointed by the CHRB, and 
there's only been one since 1988, and he no longer is working 
for them. And he wasn't a live steward; he was a satellite 



5 
steward. 

And there have obviously been a number of candidates 
who have applied who are qualified for those position and never 
been given consideration. And I think the record speaks for 
itself, the fact that they've apparently hired 2 3 this year, not 
one minority, not one. And given the fact that this Legislature 
just a year ago passed legislation requiring the Board to take 
into consideration the fact that ex-jockeys should be given some 
sort of consideration for those appointments, you know that 
there's a lot of — a lot of Hispanic ex- jockeys out there who 
are trying to get these positions, and they're not being given 
consideration . 

I really appreciate the President Pro Tern's reference 
to this issue, and I really think that the members of the Board 
ought to be challenged to comply with their stated own — their 
own stated policy with respect to affirmative action in 
contracting, and these are contract employees. 

I appreciate your time. 

CHAIRMAN ROBERTIz Thank you. 

Any questions? 

Senator Petris . 

SENATOR PETRIS: Well, I've been interested in labor 
issues, too. I have been for a long time. 

One of the problems is, they don't — you don't have 
a grievance procedure there. If a parimutual clerk has a 
problem, he's supposed to go to his shop steward, but there's no 
formal mechanism by the Board itself to provide an avenue for 



6 
filing the grievances, as I understand it. They never have had. 

I'm wondering if the Board is even thinking about or 
discussing improving the accessibility of employees for 
expressing their problems? Is there anything on the horizon? 

MR. VALPREDO: Senator, I don't know of anything 
agendaed. I've only been on the Board seven or eight months, 
and none of that has come before us on our agendas. 

There's the normal procedure for that to go through, 
and to my — I have not been a part of any of that Board that 
has not seen any of that come before us or would stop any of 
that to come before us. 

SENATOR PETRIS: Do you know what the procedure is? 
If I were a parimutual clerk and I had a complaint against some 
conduct of management, where do I go? What do I do? 

MR. VALPREDO: You'd probably go to the stewards of 
the race track first, and the stewards would bring it to the 
Board. Or, you could contact the California Horse Racing Board 
office here in Sacramento and give it notice, and it would be 
agendaed . 

SENATOR PETRIS: Suppose I'm at a track in Southern 
California. I contact them by mail, I guess; send in a 
complaint? 

MR. VALPREDO: I guess so, sir. 

SENATOR PETRIS: I was very active in the insistence 
when the satellite program was established that this particular 
provision in the code that was referred to be established. And 
we had a very clear understanding, at least in the Senate, that 



7 

this would be strictly observed and enforced. And now we're 
getting complaints that it isn't. 

It seems to me, everytime we have, you know, a new 
member confirmed, I ask them about that, and they say, "Yeah, 
we're going to comply with the law, and follow the letter and 
the spirit," and then we still get complaints. 

Senator Roberti has asked you about it. No point in 
my going over the same thing, but I would urge you to take a 
good look at that provision, and bear it in mind when these 
things come up. If it's not clear enough, we'll have to, you 
know, put in another amendment, I guess, and clarify the law. 
But the intention is certainly clear. 

We could have stopped the extension to a satellite 
system. That was the issue. Do you want the extension, do you 
want the satellite system, you put this in. Otherwise, there's 
no satellite system. 

Now we have a satellite system, and the same old 
complaints are still there, and that makes me personally kind of 
disappointed and unhappy, because that was the agreement 
originally. 

Now, you're not a party to it. You don't know the 
history of it. So, I'm not criticizing you, but I'm criticizing 
the Board as a whole. They should be complying with that 
agreement and with the statute. 

Now, I know they have an Attorney General's opinion 
that they're not obligated to do this or that, which I haven't 
read; I've just heard about it today, and I'd like to examine 



8 
that, too. 

In the meantime, I would urge you to check the 
history, and be very sensitive to the commitments that were made 
at the time. 

MR. VALPREDO: Thank you, Senator. I definitely 
will. 

SENATOR PETRIS: Thank you. 

SENATOR MELLO: Mr. Chairman. 

CHAIRMAN ROBERTI: Senator Mello. 

SENATOR MELLO: I just would like to comment on, I 
think last year the Rules Committee, we set a goal, and I think 
we sent the Governor a communication listing that we thought 
appointments should be made on the basis of gender equity, women 
and men, and also ethnic groups. 

It just happens that his appointments continue to be 
male. There's six males, one female, out of seven appointees; 
one Hispanic out of seven appointees, the rest all being 
Caucasian. 

I think that truly does not reflect the ethnic and 
gender make-up of the State of California. 

And like Senator Petris pointed out and others, where 
do ethnic groups turn to if the make-up of the Board as 
appointed by the Governor is such that they're just left out of 
the system? Right now, the facts are that Blacks are under- 
employed, Hispanics are under-employed, women are underpaid as 
far as the amount of pay they're getting for the same work that 
men perform. And somewhere, somebody has to stand up and be 



9 
accountable for all this; otherwise, we keep the status quo 
going on for years, and years, and years. And this is what's 
going to destroy our diversity and our form of government 
eventually. 

That's just my comment, and I feel very strongly 
about it. 

MR. VALPREDO: Thank you, Senator. 

CHAIRMAN ROBERTI: Any other questions? Is there any 
support in the audience? 

Do I hear a motion? 

SENATOR CRAVEN: So move. 

CHAIRMAN ROBERTI: Senator Craven moves confirmation 
be recommended to the Floor. 

Secretary will call the roll. 

SECRETARY WEBB: Senator Beverly. 

SENATOR BEVERLY: Aye. 

SECRETARY WEBB: Beverly Aye. 

Senator Mello. 

SENATOR MELLO: No. 

SECRETARY WEBB: Mello No. 

Senator Petris. 

SENATOR PETRIS: Aye. 

SECRETARY WEBB: Petris Aye. 

Senator Craven. 

SENATOR CRAVEN: Aye. 

SECRETARY WEBB: Craven Aye. 

Senator Roberti. 



10 

CHAIRMAN ROBERTI: Aye. 

SECRETARY WEBB: Roberti Aye. 

CHAIRMAN ROBERTI: The vote is four to one; 
confirmation is recommended to the Floor. 

Congratulations . 

MR. VALPREDO: Thank you, Senators. 

CHAIRMAN ROBERTI: The next is the appointment of 
Dr. Molly Coye, Director of Health Services. 

I believe, Dr. Coye, we have had you — and Senator 
Bergeson is here to introduce her. Senators Morgan and Bergeson 
are here, but I guess Senator Bergeson was here first, and they 
will introduce Dr. Coye, and then Dr. Coye, you will make your 
opening statement as to your qualifications for serving in this 
position. 

Senator Bergeson. 

SENATOR BERGESON: Thank you, Mr. President and 
Members of the Committee. 

I would like very much to give my strongest support 
to Dr. Molly Coye for confirmation of the Department — or, 
Director of the Department of Health Services . 

I've had the opportunity of getting to know Dr. Coye 
both through the legislative process as well on a personal 
level, and I can commend her in the highest possible way from a 
position of integrity and background that she brings to this 
office is impeccable, her experiences in family practice as well 
as in many public health services. 

One area that I'm particularly impressed with is her 



11 

attention given to preventative health care. And certainly, as 
we look at the issues dealing with women and children, I think 
that she carries great leadership and potential for addressing 
those problems in a most conscientious and capable way. 

As current Chair of the Women's Legislative Caucus, I 
circulated a letter which I believe you have had submitted to 
you, of which are 15 women. And if you scrutinize those 
signatures, it's a bipartisan group of women giving total and 
complete support to her confirmation. 

I think that this offers a unique opportunity for a 
woman of such talent to be a very active player in the issues of 
health care, and as we look at the budget and the issues that 
are dealing with the all-important issue of health care reform, 
I think that her talents are needed and can be greatly 
appreciated. 

So, I want to give my support to her, and I hope that 
the Committee will see fit to see her confirmed. 

Thank you very much. 

CHAIRMAN ROBERTI: Thank you, Senator. 

Senator Morgan. 

SENATOR MORGAN: Thank you very much, Senator Roberti 
and Members . 

I just, as a signator on the letter that, I think, 
speaks for my support for Dr. Coye, who I think brings expertise 
to this job that has not been exceeded, at least in my eight 
years here in Sacramento. 

I think as you have read her resume and hear her 



12 
speak, you hopefully will understand the fine qualities and the 
dedication that she brings to this job. 

I have not always agreed with the Director of my own 
Valley Medical Center County Hospital, but on this issue, we are 
in full agreement. And he has a letter that he sent to Senators 
Alquist, McCorquodale and myself in strong support of Dr. Coye, 
and that the result of working with her over the past year, and 
knowing of the fine leadership she's provided since she has been 
appointed to this position. 

And I do hope that the Rules Committee here today 
will not hold Dr. Coye responsible for budget decisions that 
have not yet been made. That rather, you will look at her 
qualifications and know that she will be there to implement the 
will of the Legislature. And that it is her qualifications on 
which she should be judged. 

Thank you. 

CHAIRMAN ROBERTI: Thank you, Senator. 

Dr . Coye . 

DR. COYE: Thank you very much. 

Since the last time that I appeared before you was 
rather late in the day, after a very exhausting afternoon, I'd 
like to take the opportunity to make few opening remarks, if I 
could. 

CHAIRMAN ROBERTI: Yes. 

DR. COYE: First of all, I'd like to address my 
qualifications for the job in the most traditional and 
straightforward way, beginning with graduation. I got my B.A. 



13 
in Political Science from the University of California in 
Berkeley in 1968. I then spent three years in Asia, studying 
Chinese History and Literature and Language; came back and did a 
Master's at Stanford in Chinese History. 

At that point, showing a remarkable lack of constancy 
in my career decisions, I decided to go to medical school, and 
did both my M.D. and my Master's in Public Health at Johns 
Hopkins School of Medicine in Public Health. 

During that time, I also began my work in 
preventative medicine and in public health, and worked with the 
Oil Chemical Atomic Workers Union as an intern for — during 
most of that time. I did my internship in family practice at 
San Francisco General Hospital, and my residency at U.C.S.F. 
During that time, I worked with the Oil Chemical Atomic Workers, 
Local 1-5, in Martinez as my continued experience in 
occupational health. 

I then founded a clinic at San Francisco General 
Hospital for occupational health, which was the second clinic in 
the country established to assist workers with occupational 
health problems, and also was a clinical professor at U.C. From 
'80 to '85, I was a Medical Officer for the National Institute 
of Occupational Safety and Health based in San Francisco and 
worked primarily on migrant health problems among farmworkers — 
migrant health and pesticide problems in farmworker communities 
up and down the Central Valley and along the coast. 

In '85, I was invited to go to New Jersey and serve 
as an advisor to Governor Thomas Kane for Health and the 



14 
Environment. I did that for one year, and then was Commissioner 
of Health four years in New Jersey. 

At the end of that time, I went to Johns Hopkins 
again on the faculty in the School of Public Health, concluded 
after a year and a half on the faculty of an academic 
institution that I preferred government service, and was invited 
to come here and join Governor Wilson's Administration. 

That gives you a brief summary of my background. I'd 
like to turn a little bit then to the kinds of activities I've 
been involved in professionally. 

I'm a Fellow of the American College of Physicians 
and American College of Preventative Medicine, which are my 
primary professional associations, in addition to the American 
Public Health Association, for which I was Chair of the 
Executive Board and Chair of the Occupational Health and Safety 
Section. I'm also on the Executive Board of ASDO, which is the 
national organization of state health directors, and a Fellow of 
the National Academy of Public Administration, which is an 
equivalent of the Institute of Medicine for government 
administrators, congressionally established. And I offer that 
to you as an indication of my interest in government issues and 
the general issues of governance. 

In addition to that, there are a couple of other 
professional activities I've been involved in that might be of 
particular interest, given the time that you've devoted to your 
concerns about environmental health. I have been not only a 
member of the Advisory Council for the National Institute for 



15 
Environmental Health Sciences, which is the federal NIH 
institute, but oversees all federal research on environmental 
health issues for three years, but also a part of the 
Environmental Epidemiology Committee of the National Academy of 
Sciences. This is a special expert committee appointed three 
years ago. We concluded a two-year study of patterns of ill 
health, disability and disease, caused by environmental 
exposures. So, we spent a great deal of time pouring over all 
of the information in that area. 

I also, and perhaps most germanely, was a member of 
the Secretary's Panel for the Evaluation of Epidemiological 
Research Activities for the Department of Energy. This is about 
two years ago. It was convened to look at the capacity of the 
Department of Energy to track the health patterns of its own 
workers and contract workers exposed to radiation on the job. 
And in that capacity, I recommended, and we did succeed in 
reporting out, a recommendation which was enacted to remove many 
of those activities from the Department of Energy and transfer 
them to the Department of Health and Human Services, 
specifically to CDC and NIOSH. 

So, I've spent a fair amount of professional time 
looking at those issues. 

What I would like to do in conclusion is talk a 
little bit about what I hope to achieve during the time that I 
would be in office if confirmed. 

I believe that this background prepares me not just 
to manage complexity, and the Department of Health Services is 



16 
very complex, very large, certainly the largest in the country, 
but also that it prepares me for leadership and for managing 
change. And I believe that we are in the middle of and will 
continue to face profound change. 

I came here to be a leader and to apply those skills 
and that background. I arrived to confront a budget situation 
that is challenging me and will challenge all of us far beyond 
anything that we were prepared for in our previous work. 

Managing change and leadership in this environment 
means balancing increasing demands against grossly fewer public 
resources. It means maximizing those resources through 
innovation and building public-private partnerships, 
responsiveness to our growing ethnic and economic diversity 
within the state, and above all, prevention, and integrating 
prevention into every part of the work that our Department does . 

I came with the intention of integrating the side of 
the Department which is Medi-Cal with the side that 
traditionally has been called Public Health, to try to make sure 
that prevention is a key building block within all of our 
programs, and that solving the problem of access, which is 
something that I hope during my tenure we would take major 
strides towards, would involve making sure that prevention is 
the first building block of access, and that access is not just 
to fixing people up after they have become sick, but to actually 
preventing them from becoming sick and access to all of those 
prevention services . 

The strategies for doing this, then, include both 



17 
expanding access, and within that, not just increasing financing 
for care, but restructuring care in a very profound way, but 
also community outreach, and maintaining the core services of 
public health, even during the most difficult times 
economically. Within the Department, that means a high degree 
of accountability; opening up a Department that some people feel 
has not bene able to communicate everything that is going on 
within it, all of what it hopes to accomplish, and what it has 
accomplished, and holding ourselves accountable. To that end, 
developing data systems that allow you, the Legislature and the 
public, to actually examine what we are doing for the health of 
the public. 

We also will be working to streamline and consolidate 
many of our programs and our services. With the Governor's 
strong support and leadership, we're working on school-linked 
services, on the promotion of primary care, and on, through your 
support with AB 99, the consolidation of our Maternal and Child 
Health Programs . 

I believe even in a time of tremendous crisis and 
tremendous challenge, that we can exert real leadership, that we 
can achieve real change. 

Thank you very much. 

CHAIRMAN ROBERTI: Thank you, Doctor. 

Are there any questions? Senator Mello. 

SENATOR MELLO: Mr. Chairman, perhaps one more of 
procedure . 

I know Ms. Coye was part of the testimony on 



18 

Mr. Gould when we heard his confirmation also, and I'm referring 
to the Ward Valley adjudicatory hearing process, which she will 
be the decision maker on that decision. 

We've gotten a letter from one group. They claim 
that this agreement, it's supposed to be printed in the record, 
the Journal, was only made available yesterday, so they'd like 
more time to evaluate it because they feel that part of it is 
not consistent with what was discussed here at the hearings. 

Secondly, I understand from Ms. Michel that the 
Legislative Counsel would like to have some more time as well in 
order to review the agreement. 

From my standpoint, I would like to make sure that 
those agreements are put forth and filed in the Journal. The 
persons from the opposition to Ward Valley are also supposed to 
set forth their understanding of the agreements, but they want 
copies of the transcripts, which are being made available. 

So, I'm asking, Mr. Chairman, is your plan to put her 
over for that information, or are we going to take testimony 
today and make a decision, because I have some other questions 
I'd like to her about. 

CHAIRMAN ROBERTI: Well, we have a number of people 
here to testify. I don't think it would be fair to them not to 
have them heard. 

However, if a Member of the Committee chooses to 
request that a confirmation be put over, as long as it doesn't 
jeopardize the confirmation, that's what we normally do one time 
after the initial testimony. 



19 

SENATOR MELLO: I don't want to inconvenience the 
people that are here. 

I would support hearing testimony, then I'll reserve 
the right to ask that it be put over. 

CHAIRMAN ROBERTI: All right. It's my understanding 
that the Ward Valley agreement, although it did reach us only 
yesterday, I don't think there are major disagreements over it; 
although it's obviously something everybody wants to see. But 
there may be interpretation questions, but it's my understanding 
there is not a major befuddlement that both — that there's an 
impasse between the various people who were discussing this. 

SENATOR MELLO: I understand the Leg. Counsel has — 
if I may ask Nancy, was there a communication from Leg. Counsel 
asking for some time to interpret? 

MS. MICHEL: Yes, until we get input from the other 
side, they need some additional time. Jimmy thinks there may be 
additional minor things — 

CHAIRMAN ROBERTI: Our Leg. Counsel, yes. 

MS. MICHEL: Our Leg. Counsel. 

CHAIRMAN ROBERTI: Okay, fine. 

Senator Petris . 

SENATOR PETRIS: Well, I would join in the Senator's 
request, but I think we can save time by going into other 
issues. I had told Dr. Coye last time that I had a couple of 
subjects I wanted to go into that aren't related to this. 

I think we ought to hear the testimony of people who 
have come from a distance, and I'd like to go into these other 



20 
issues, and then I would join Senator Mello in putting over the 
hearing for the other two matters . 

CHAIRMAN ROBERTI: Very fine. 

Why don't we call on the witnesses. We'll start with 
witnesses in support. I have two witnesses here who I 
understand have to catch planes, so I'll call on them. 

I'll call on the following people that I have here 
that are to testify in support of Dr. Coye: Mark Diaz, Latino 
Health Policy Council. 

Why doesn't Mr. Diaz come up first, because I 
understand he has to catch a plane. 

After that, Dr. Birt Harvey, Academy of Pediatrics; 
Dr. Carl Smith, CAlifornia Conference of Local Health Officers; 
Ophelia Long, Executive Director of the Highlands Hospital; 
Sister Elizabeth Joseph Keaveney of Lynwood Hospital; Dr. Pat 
Salber of the Emergency Room Physicians; and Hoda Anton-Culver, 
U.C.L.A. In addition, John Dunn-Mortimer, AIDS Project L.A.; 
Helyne Meshar, AIDS Project, Hollywood; and Laurie McBride, LIFE 
AIDS Lobby. 

Is there anybody here to testify in support that I 
don't have on the list? Three people. 

Yes, and you are? 

DR. LASHOF: Joyce Lashof, L-a-s-h-o-f. 

CHAIRMAN ROBERTI: Dr. Joyce Lashof, thank you. 

MR. HITCHCOCK: Doug Hitchcock, California 
Association of Hospitals and Health Systems. 

To save time, Senator, we're here to reiterate our 



21 
support. We previously testified. 

CHAIRMAN ROBERTI: Duly noted and thank you very 
much. 

[Laughter. ] 

CHAIRMAN ROBERTI: Any more like that? 

[Laughter. ] 

CHAIRMAN ROBERTI: And Mr. Barnhart . 

One other I missed. 

MS. CAPELL: Beth Capell, California Nurses 
Association. 

CHAIRMAN ROBERTI: California Nurses Association. 

That's going to be the list of witnesses in support. 
I'm going to close it because we have — 

MR. FLATT: Senator, Dennis Flatt, Kaiser Permanente, 
in support. 

CHAIRMAN ROBERTI: And that's your testimony, okay, 
good. 

[Laughter. ] 

CHAIRMAN ROBERTI: Dennis Flatt, Kaiser Permanente, 
support . 

Dr. Diaz. 

DR. DIAZ: Mr. Chairperson and Members, good 
afternoon. My name is Dr. Mark Diaz, and I'm here representing 
the Chicano Latino Medical Association of California. We're a 
statewide organization comprised of approximately 500 members in 
all fields of health, medical practice, and all types of 
practice settings from single practitioners to those who are 



22 

also members of large HMOs. CMAC is a professional organization 
dedicated to improving the health status of Latinos . 

I personally am a family practitioner, family 
practice physician here in Sacramento. I graduated from the 
University of California at San Francisco School of Medicine and 
completed my residency, internship and Song-Brown Fellowship at 
the U.C. Davis Medical Center, where I now teach part-time. I 
also have my own private practice. 

I'm here today to urge your confirmation of Dr. Molly 
Coye as Director of the State Department of Health Services. 

CMAC views Dr. Coye as a breath of fresh air, in that 
she considers California's diverse populations as a wealth and a 
benefit, rather than a social problem. She has met with various 
coalitions representing under-served populations to begin 
addressing unmet health needs of those populations. As an 
example, Dr. Coye has supported ongoing dialogue with the 
Coalition of Latino Health Organizations to begin addressing 
issues such as increased access to prenatal care. Additionally, 
the members of CMAC are enthusiastic in their support of the 
preventative medicine initiatives under way within the 
Department, such as Check-Up and Healthy Start. 

CMAC welcomes the change in the Administration's 
focus from Band-Aid care to preventative medicine. We see such 
a change as an important step in solving the numerous and 
complex health problems facing Hispanics and the state in 
general . 

Once again, I urge your confirmation of Dr. Molly 



23 

Coye. Based on her training and work experience, Dr. Coye 
brings a tremendous amount of knowledge and understanding of 
sound, basic public health principles, and an in-depth 
understanding of the workings of an effective health care 
system. 

CMAC looks forward to an ongoing mutually beneficial 
working relationship with Dr. Coye and the Department of Health. 

Thank you. 

CHAIRMAN ROBERTI: Thank you very much. 

Next is Dr. Birt Harvey, Academy of Pediatrics. 

DR. HARVEY: Thank you, Senator Roberti and Members 
of the Senate Rules Committee. I appreciate the opportunity to 
testify in behalf of Dr. Coye for confirmation for head of the 
State Health Department. 

I am a professor of Pediatrics at Stanford 
University. I served as the District Chairman for California 
for the American Academy of Pediatrics, and subsequent to that, 
as President of the organization nationally. 

The Academy is about 43,000 members nationally, and 
about 4,000 in the state. And our primary purpose is to improve 
the health and welfare of children. 

In my role as President, became well aware of what 
Dr. Coye had done in New Jersey. And I wish to address that to 
you today, because that is something which should be relevant to 
your consideration of her confirmation in the present role. 

She — when she served as Health Commissioner in the 
State of New Jersey, she developed two innovative programs that 



24 
I would like to mention to you that concerned pregnant women and 
children. 

The first was called Health Start. It was a program 
designed to improve the accessibility and the scope of services 
available to all Medicaid-eligible pregnant women and young 
children. In designing this program, she worked with the 
Children's Defense Fund, with the pediatricians in the State of 
New Jersey, and obstetricians in the state. 

What she tried to do was several things with this . 
To make services more available to Medicaid recipients, she 
improved provider reimbursement, which increased pediatrician 
and obstetrician participation in a variety of different care 
delivery arrangements. She arranged courses for the providers 
and their staffs to increase their cultural awareness and 
sensitivity to patients' needs. 

To increase utilization of prenatal care and 
preventive care for children, she used a large number of means. 
She sent notices out with the Welfare checks of the availability 
of care. She had radio and t.v. public service announcements, 
posters. There was an 800 number, so that families on Medicaid 
could call in and be referred to a nearby provider to deliver 
service for the pregnant or that infant. She hired through a 
grant from the Ford Foundation a number of local women from the 
areas to go out and canvass and speak to pregnant women, and see 
that they got into medical care early on, and they arranged to 
speak to neighborhood groups about the value of early prenatal 
care and infant and child care. 



25 

She modeled the services after the program that you 
were wise enough to institute here, the OB Access Program. The 
services, therefore, did include: health support services for 
pregnant women on Medicaid; counseling; nutrition advice; home 
visits; health education; coordination of care. And she had 
within this program, too, quality assurance. 

The other program that I would — it was very highly 
successful, I would mention, too. It was recognized as a 
national model by the National Governors ' Association and the 
National Conference of State Legislators. 

She had a second innovative program called New Jersey 
Moms that was designated to provide quality care for the 
medically indigent in the state, too, and their offspring. It 
took money from the New Jersey All Payer Fund and paid global 
fees to obstetricians and pediatricians. It was approved by all 
the necessary boards and commission, and was anxiously awaited 
by national public health policy leaders to see its — how 
effective it would be and if it would work well. Unfortunately, 
it did emphasize preventive care in obstetrics by prenatal care, 
and for infants, and it was — would serve low-birth — save 
low-birth weighted infants, and save much money this way, as 
well as being a very humane program. 

Unfortunately, because of a change in administration 
and Dr. Coye leaving at that point, the program was not able to 
be implemented . 

I mention all these points just to illustrate several 
pertinent things you should consider about Dr. Coye. She's 



26 
innovative, but practical with her innovation. It's practical; 
it works. She reaches out to work with all groups, private and 
public. She's inclusive, not exclusive. She emphasizes 
prevention, and she cares about those who are less well off than 
we are, and less politically potent: poor mothers and children, 
their children. 

And for all these things we applaud her. We think 
highly of her. 

Now, these characteristics are true not just in New 
Jersey, but they're true here equally well in California. She's 
worked closely with the Academy of Pediatrics to develop 
programs of high quality that will increase access to care for 
pregnant women and for their children, and for all of 
California's children. And we applaud her efforts, her 
initiatives, her enthusiasm, and her dedication. 

We strongly support her nomination as Director of the 
State Department of Health Services . 

Thank you very much. 

SENATOR PETRIS: Mr. Chairman. 

CHAIRMAN ROBERTI: Senator Petris. 

SENATOR PETRIS: I'd like to ask the doctor some 
questions . 

This is difficult, but I greeted Dr. Coye when she 
first landed in California, in the first few days, and I have a 
tremendous admiration for her, and her credentials are awesome. 

She has emphasized prevention in a lot of her 
programs and in her statement just now, and you just emphasized 



27 
prevention. 

In light of that, I'm puzzled by some of the actions 
taken. Some of them, admittedly, come from the Governor, and 
she's appointed by the Governor. There's a problem in OSHA, a 
reduction in some of the important activities going on there. 
The Cancer Registry has gone through a reduction. 

I realize these are probably budget considerations. 
They may not be within her control . 

Big cuts in the Tobacco Proposition 99 expenditure of 
money . 

Now you, as a pediatrician, I think, are more keenly 
aware of the impact of smoking on children. The budget has a 
$60 million transfer out of Prop. 99. The education part of it 
is reduced. The advertising, the media, is reduced. Contracts 
with nonprofit outfits have been canceled. Every one of these 
steps is a reduction of activity of prevention. 

Now, how do you square your testimony with this 
conduct, with this policy? 

DR. HARVEY: Senator, I think if Dr. Coye had her 
druthers, and there was money available, she would support every 
one of those programs fully. 

The problem, as you and I well know, is the available 
dollars. And it's — the Administration has to decide within 
its wisdom how it's going to allocate those resources, and 
Dr. Coye has to do the best she can with — in the confines of 
the amount of dollars allotted. 

I would be sure that she would speak strongly for all 



28 
those programs . 

SENATOR PETRIS: Are you telling me as a pediatrician 
it's okay to move $60 million out of the Prop. 99 education and 
other — 

DR. HARVEY: I don't like it at all, Senator. I'd 
love to see it stay there . I think it ' s very important . And 
preventing children from starting smoking is far better than 
trying to get people to stop once they are hooked on nicotine. 

I agree with you fully. It displeases me. There are 
a lot of things that displease me, and displease the Academy. 
But we recognize that there are limitations. 

All we can do is support for as much as Dr. Coye can 
get through. 

SENATOR PETRIS: Have you expressed that displeasure 
to the Governor? You meaning the Academy. 

DR. HARVEY: Uh, I don't know. At the present time, 
I don't hold office within the state Academy of Pediatrics. I 
served as Chairman, and then went on to national office. 

I don't know if they have or not. I know they are 
displeased, but I don't know if they have formally expressed 
that. 

SENATOR PETRIS: Expressions to Dr. Coye? 

DR. HARVEY: Oh, I think she knows very well how we 
feel . I don ' t think there ' s any question about that . 

Perhaps when you have the opportunity, you can 
question her directly on her feelings about the program. 

SENATOR PETRIS: Yes, but you're the witness right 



29 
now — 

DR. HARVEY: Right. 

SENATOR PETRIS: — and I want to take advantage of 
the opportunity here . 

Thank you. 

DR. HARVEY: Thank you very much, Senator. 

Thank you, Senator Roberti. 

CHAIRMAN ROBERTI: Thank you very much. 

The next witness is Mr. Carl Smith, California 
Conference of Local Health Officers. 

MR. SMITH: Senator Roberti, Committee Members, I am 
Carl Smith, the President of the California Conference of Local 
Health Officers. 

I'm here today to urge that your Committee recommend 
confirmation of Dr. Coye. 

The Conference of Local Health Offices has a 
statutory requirement to advise the Department of Health 
Services and the Legislature regarding public health issues. 
Dr. Coye has already demonstrated her willingness and ability to 
work very closely with us in fulfilling our responsibility to 
participate in public health policy development. 

As you've already heard, and I don't want to 
reiterate it too many more times, but it is important to comment 
upon how exceptionally well qualified Dr. Coye is to serve as 
Director. She brings to the position a wealth of experience. 

She's already demonstrated that she is a strong 
spokesperson and advocate for public health, and she is now 



30 

providing the kind of statewide leadership which we in public 
health have so badly needed. 

We look forward to working closely with Dr. Coye as 
she continues to give us a kind of leadership in public health 
services in California. , 

I would also like to recommend Dr. Coye ' s 
confirmation on behalf of the Alameda County Health Care 
Services Agency and its Director, David Keers . Dr. Coye has 
been exceptionally helpful to us in Alameda County around a 
number of issues, and we have found her readily accessible, very 
supportive, and extremely helpful, and we really have enjoyed 
working with you very much. 

Dr. Coye typifies the kinds of committed, hard- 
working leaders which we need in state government. And again, I 
urge that your Committee confirm her appointment as Director of 
the Department of Health Services . 

CHAIRMAN ROBERTI: Thank you. 

Senator Petris. 

SENATOR PETRIS: Do you work with the Lung 
Association in Alameda County? 

MR. SMITH: I'm not with them. I work with them, 



yes 



SENATOR PETRIS: You're aware of their programs? 

MR. SMITH: Yes. 

SENATOR PETRIS: Is that a good outfit? 

MR. SMITH: Yes. 

SENATOR PETRIS: Do you know that the Department 



31 
canceled their contract with the Department for the services 
they perform in this overall battle against cancer? 

MR. SMITH: Which — I don't know which contract 
exactly that is. 

SENATOR PETRIS: Well, it's a contract developed 
under Proposition 99. 

MR. SMITH: Okay, this was one of their 

SENATOR PETRIS: It's $1.9 million, relating to their 
services to carry out the intent of Prop. 99. 

MR. SMITH: This was the State Lung Association. 

SENATOR PETRIS: The State, yes. 

MR. SMITH: Right. I'm aware of that. 

SENATOR PETRIS: You're aware of that cancellation? 

MR. SMITH: Yes. 

SENATOR PETRIS: That was not a budgetary problem. 
It wasn't done for budget reasons. There was a contract let, 
and then it was canceled within hours after they filed a lawsuit 
challenging the transfer of money out of Prop. 99. 

Are you aware of that? 

MR. SMITH: No, I was not. 

SENATOR PETRIS: Would you approve of that? 

MR. SMITH: I would not approve the canceling of the 
contract as a retribution, as you've suggested. 

SENATOR PETRIS: Well, I didn't use the word, ,but 
you can draw your own conclusions. 

What about transfer of other monies out of 99 
education campaign into other very good other medical services, 



32 
but not the ones required by Prop. 99? 

MR. SMITH: Right. 

SENATOR PETRIS: Do you have any comment on that? 

MR. SMITH: Yes. 

There are two major problems, and you're probably 
better aware of them than I, but the first is that the funds are 
diminished. They are declining from the cigarette tax, one. 

Two, as you know, we're also increasing — have 
increasing demands for funding for medical care. 

I think that Dr. Coye and the State Department has 
had to walk a very fine line of trying to preserve some sort of 
prevention dollars out of this pot of dollars, and at the same 
time, try to maintain the health services in Alameda County — 
excuse me, in California. 

I think the Conference of Local Health Officers has 
opposed the — any transfer of dollars out of the education 
account, and that's been our position. But I also think that we 
recognize that Dr. Coye had to make some very hard decisions 
around this allocation of funds. 

SENATOR PETRIS: Okay, thanks. 

CHAIRMAN ROBERTI: Thank you. 

Any other questions? 

Thank you very much. 

The next witness is Ophelia Long, Executive of 
Highlands Hospital. 

MS. LONG: Mr. Chairman and other Members, my name is 
Ophelia Long. I'm the Hospital Director, Chief Executive 



33 
Officer, at Highland General Hospital, a member of the Board of 
Directors of the California Association of Public Hospitals, 
Chairman of the Black Congress on Health Law and Economics, and 
past President of the National Black Nurses Association. 

I'm speaking on behalf of the California Association 
of Public Hospitals in support of the confirmation of Dr. Molly 
Coye as Director of Health Services . 

During her tenure, Dr. Coye has provided a positive 
leadership and vision which we need so desperately during this 
time of change. She is acutely aware of the injustice suffered 
by the citizens of Alameda County and Highland Hospital who 
cannot advocate for themselves in articulating their health care 
needs. She recognizes that in talking about health care, we're 
not talking compassion; we're not talking economics; we're not 
talking diseases and technology. We're talking justice. 

Dr. Martin Luther King, 30 years ago, said that 
injustice anywhere is a threat to justice everywhere. Today, 30 
years later, justice has become a payment for being harmed, 
rather than a moral belief that directs life in this country. 
As a result, we live not with the lack of justice, but with rank 
injustice, and then try to make it up to people by special 
benefits and programs. 

Nowhere is injustice more flagrant than in the 
delivery of health care. Dr. Molly Coye has brought with her a 
balanced scale of knowledge and understanding of the health care 
needs of the citizens of this state, and a commitment to follow 
through in bringing this state to a level of wellness that will 



34 
focus on prevention and the correct solutions for teenage 
pregnancy and infant mortality. 

She's committed to creating, as Dr. Lewis Sullivan, 
Secretary of Health and Human Services says, a culture of 
character among California citizens, especially our young, that 
will instill within them early in life a commitment to avoid 
personal habits, i.e., drugs, tobacco, and alcohol, that places 
them at risk for many diseases . 

Dr. Coye has visited the California Association of 
Public Hospitals Board meetings to hear our concerns . She has 
visited Highland Hospital and has supported: our Healthy Infant 
program that increases access of high risk infants born to 
mothers with substance abuse problem and receiving no prenatal 
care; our Start Prenatal Care program, designed to deliver 
comprehensive prenatal care services in the emergency room to 
pregnant women; our Health Start program designed to assist 
pregnant parenting substance abuses with the recovery process to 
promote self-sufficiency, healthy life styles, improved 
parenting, and family reunification; our Perinatal Substance 
Abuse project, which provides comprehensive services to 200 
substance abusing pregnant women and their children; and our 
Waiting List Reduction grant, which expands our outpatient drug 
treatment services by 220 treatment slots. 

Dr. Molly Coye has clearly provided visionary 
leadership to the Department of Health Services . Her 
recognition that prevention will guarantee reduced costs puts 
her at the forefront of health reform, and places her in an 



35 
invaluable position as this state fights to contain its budget. 

Her commitment to California's future has been 
evident as she has sought input from provides and consumers . 

I urge you to confirm her appointment as Director of 
the Department of Health Services . 

CHAIRMAN ROBERTI: Thank you very much, Ms. Long. 

Are there any questions? 

Next witness is Sister Elizabeth Joseph Keaveney of 
Lynwood Hospital . 

SR. KEAVENEY: Good afternoon. I'm Sister Elizabeth 
Joseph Keaveney, the President and Chief Executive Officer of 
St. Francis Medical Center in Lynwood, California, the large, 
disproportionate share facility in Southeast Los Angeles County. 

I'm here today to ask you to confirm Dr. Molly Coye 
as the Director of Health Services for the State of California. 

When Dr. Coye came to the State of California a year 
ago, her credentials preceded her. I think we all looked at 
those credentials and had very high hopes for what the future in 
California would be. When Dr. Coye came, she found herself in 
an atmosphere of limited resources and limitless needs. She 
began to analyze the situation of access to health care and 
health care policy in the State of California. 

She found in that equation, I believe, three very 
important pieces of the equation, being the physician, the 
provider, and the patient. And she began right where she 
morally should have begun, with the patient: with access to 
health care. 



36 

When we come to the table, I think, as providers, 
physicians, to discuss issues, we all have a different end of 
the blanket, and we're tugging on it. There are limited 
resources and limitless needs, and if we don't focus on the 
individual, we are all potential patients, if we don't focus on 
the individual and access to health care, I feel we will do a 
grave disservice to the State of California and its future. 

I commend Dr. Molly Coye for beginning her program of 
access to health care on preventative medicine. Today, 25 
percent of the children in the State of California have no 
access to health care. Our programs in the schools and the 
public health programs have disappeared because of financial 
problems. I believe that the best that we could do for any poor 
child in an inner-city community is to keep them healthy. 

I feel that the days ahead for health care in 
California will be days of change, and change is uncomfortable. 
We need someone who has the vision of a leader to take us from 
the paradigm we now know as health care in the State of 
California into a new paradigm, where there will be access to 
basic health care, where we will speak about preventive services 
for our children, and family health care will be a right of all. 

I think that you have a woman before you who has come 
with impeccable credentials. She's a visionary leader. She's a 
woman of courage, and I trust her. And I believe that she will 
carry us through to access legislation [sic] in the State of 
California, which we will all be proud of in the years ahead. 

So I ask you to confirm her, and to thank her for 



37 
what she's done in this first year. 

Thank you. 

CHAIRMAN ROBERTI: Thank you very much, Sister. 

SR. KEAVENEY: I got up very quickly. 

[Laughter. ] 

CHAIRMAN ROBERTI: You're escaping before you get the 
questions, but I think maybe you're safe. 

SR. KEAVENEY: Senator Petris left. 

CHAIRMAN ROBERTI: Yes. 

Any questions? You're safe. Thank you. 

SR. KEAVENEY: Thanks, Senator. 

CHAIRMAN ROBERTI: Dr. Pat Salber, Emergency Room 
Physicians. 

DR. SALBER: Hi, I'm Dr. Pat Salber, and I'm an 
emergency physician in active practice in San Francisco. I'm 
also the President-Elect of the California Chapter of the 
American College of Emergency Physicians, and I'm an active 
member of the California Medical Association. 

I'm here today representing both of these 
organizations, speaking in strong support of the confirmation of 
Dr. Coye as the Director of the Department of Health Services. 

As an emergency physician, and especially as 
President-Elect of my specialty society, I can tell you that I'm 
at the front line of the current crisis in health care. As all 
of you know, emergency departments have become the source of 
primary care for 5-6 million uninsured Calif ornians, and 
emergency physicians really become their primary care doctors. 



38 

Because of this experience, I really feel that I'm 
speaking from an informed position when I testify about the 
confirmation of Dr. Coye as the Director of the Department. I 
have actually had the opportunity to meet and talk with Dr. Coye 
on several occasions in her short tenure as Director, and have 
found her to be very accessible, concerned, and extremely 
knowledgeable about a broad range of issues . 

I'm very impressed with her training and background, 
and I think we've heard a lot about that today, and I really 
don't need to say more. And I feel that the State of California 
is extremely lucky to have a person of her stature to serve as 
the Director of the Department of Health Services. 

The emergency physicians are very interested in 
prevention. As a matter of fact, under my tenure, which will 
start in June, we're planning on making injury prevention one of 
our main public health issues. And we're delighted to have the 
possibility of a Director who is also interested in this. 

We also feel that because of the huge number of 
extremely critical issues which are facing the public health 
community today — and those range from the crisis of the 
uninsured, to environmental and toxic health hazards — I 
believe it's very important that Dr. Coye ' s confirmation be 
confirmed as quickly as possible. We believe that any delay 
would only create additional hardships for those of us that are 
struggling on the front line and trying to continuously strive 
to serve the health interests of all of California's citizens. 

I urge a quick confirmation of Dr. Coye. 



39 

CHAIRMAN ROBERTI: Thank you very much. 

Are there any questions of Dr. Salber? Okay, thank 
you, Doctor. 

Next is Dr. Hoda Anton-Culver, U.C.L.A. 

DR. ANTON-CULVER: Senator Roberti, Committee 
Members, I'm from U.C.I. , by the way, University of California, 
Irvine, not from U.C.L.A. 

CHAIRMAN ROBERTI: Excuse me. 

[Laughter. ] 

DR. ANTON-CULVER: It's all right. They're both 
okay. The University of California is fine. 

I'm offering today support of the appointment of 
Dr. Molly Coye as Director of the California Department of 
Health Services . 

To give my support meaning, let me say a few words 
about myself and my reasons for testifying today. 

My name is Hoda Anton-Culver. I'm the Director of 
Epidemiology at the University of California, Irvine, College of 
Medicine in the Department of Medicine. I'm also the Director 
of the Cancer Surveillance Program of Orange County. 

My area of special competence is cancer epidemiology 
and cancer prevention. I do a lot of research in cancer 
epidemiology; I have a large program, and I also teach medical 
students preventive medicine and public health. 

I'm a tenured professor. I have been at the 
University of California for 14 years. 

My testimony today is in support of the confirmation 



40 

of Dr. Coye as soon as possible. I give my support as a 
professional in the field, and not in any official capacity as a 
representative, official representative, of the University of 
California. 

I have served as the President of the American Cancer 
Society, Orange County Unit, for several years. And I do 
understand cancer prevention, and the cuts in the Cancer 
Registry very well. 

The Cancer Surveillance Program has grown and 
received international recognition mainly as a result of funding 
from the State Legislature and the California Department of 
Health Services. Thus, it was shocking to get a cut of 30 
percent in the Cancer Registry. 

We recognize Dr. Coye as a major leader in the field 
of public health with outstanding professional credentials, 
stature, and has a wide perspective for public health and the 
management of public health. 

The cuts in the funding for Dr. Coye ' s Department 
were beyond her control, however. She made the best possible 
decisions for distributing the cuts among the programs in the 
Health Department, even though these decisions did not receive 
unanimous support, and we didn't expect them to receive 
unanimous support. It was because of our belief in her genuine 
interest in cancer as a public health problem, and her 
responsiveness to our concerns for continuing our program, that 
we, in my program, and others in the statewide tumor registry, 
were able to turn to constructive ways to use the reduced funds 



41 
in the most efficient ways and preserve many of the gains our 
programs have made over the past seven years. 

The Cancer Surveillance Program of Orange County was 
the very first in the state, and I have been involved in the 
design of the statewide Cancer Registry. I was on the 
Governor's Ad Hoc Committee for the design of that program. 

The result of the reduction of funds we have now 
actually pushed everybody in the state who is interested in 
cancer epidemiology and cancer prevention to go after federal 
funds. And if you look at the amount of federal funds that we 
attracted in the state to be spent in the state on cancer 
prevention and cancer control and research, you'll find that we 
got about ten times the amount of funds that are spent by the 
State of California on the Cancer Registry. 

The Cancer Registry is very successful. It gained 
quite a bit of recognition. California is the best, not only in 
the state — in the United States, but all over the world. 

I want to conclude and then maybe you may have some 
questions. Despite my responsibility for a program that 
received a major cut in funding by the Department of Health 
Services, I want to assure you that I have full confidence that 
California has the best possible public health official for the 
job of Director of the Department of Health Services in the 
person of Dr. Coye. We cannot actually afford losing her. 

Thank you. 

CHAIRMAN ROBERTI: Thank you. 

SENATOR MELLO: Mr. Chairman. 



42 

CHAIRMAN ROBERTI: Senator Mello. 

SENATOR MELLO: Thank you, Mr. Chairman. 

I was interested in your comments, and apparently 
expertise in the Cancer Surveillance Program. My question 
really is, first of all, let me ask you, what is the 
relationship between smoking and cancer, in your opinion? 

DR. ANTON-CULVER: Well, I think we all know that 
smoking is probably the number one risk factor as a cause for 
cancer, as well as other diseases as well. So, it's a big risk 
factor. 

SENATOR MELLO: What was your feeling, then, when the 
Governor's proposed budget included transferring money from 
Prop. 99 that was used to try to curtail smoking, and transfer 
that money over to really another good program, Medi-Cal 
Perinatal Services, but from your own specialty, not in 
perinatal, apparently, but in cancer — 

DR. ANTON-CULVER: Right. 

SENATOR MELLO: — were you frustrated and angered by 
this change? 

DR. ANTON-CULVER: Quite, quite. And I think 
normally so. I don't expect anybody who is really trying to 
work on cancer prevention and see a reduction in funds that 
would go directly to smoking would be happy. 

In fact, one of the projects that I am doing and 
involved in is with the Department of Education in Orange 
County, looking at smoking in 4th, 7th, and 10th graders. And 
our research program is quite successful. We are identifying 



43 
who are the high risk kids for smoking. 

Now, saying that, and telling you that I really feel 
bad that there were cuts, I also feel that every program is 
going to have cuts when we have an overall cuts in the budget. 
I hope, however, that no programs will be deleted altogether. 

I was thankful that we can still save some of the 
tobacco-related research projects in the state with the cuts, 
and you would be surprised how much people are becoming very, 
very innovative and getting a much better at doing research for 
less money. 

I'll give you an example. When we had the regional 
registries, every one of them had a structure, and every one had 
an administration. One of the ways that we managed to cut 
budgets is to join registries together, so we would save some 
funds, but still register every cancer in the state. 

So, there are really ways. One of the things that I 
did talk to Dr. Coye about is the possibility of reinstating 
some of those funds related to cancer in the future. And she 
did promise, and I think I have that in my letter, that — and 
I'm expecting that to happen. And when the budget gets better, 
all of those kinds of programs that I am interested, and urge 
that would be reinstated, would get actually more funding. 

The other way that we cut funds is by putting off 
some of the things that we can do later, and it's just a 
management of funds. And I think as long as we don't let 
something that is so important, such as maternal and child 
health, or cancer prevention, or Cancer Registry, drop off 



44 
altogether, I think it's a matter of how we manage our dollar in 
this climate of really lack of funds or reduced funds, to keep 
all our programs in public health and preventive medicine. And 
that's the number one for me and people who are doing what I'm 
doing, to keep going and not to be actually closed. 

I think it's just important that we do that. 

SENATOR MELLO: Let me ask you, did you communicate 
your frustration or feelings about this version of the funding 
from Prop. 99, funds to other programs away from tobacco 
smoking, to the Governor or to — 

DR. ANTON-CULVER: Yes. 

SENATOR MELLO: — to Dr. Coye? 

DR. ANTON-CULVER: Yes. I'm quite vocal. I write 
letters, and I'm — yes, I am not happy with the reduction of 
funds. But I'm also quite aware of the fact that when you have 
decreased budget, whether it's at the state level, or county, or 
even at a very small operation, if I have a reduced budget, I'm 
going to try to make the best out of it until that budget gets 
in a better shape. I think that's where we are now. 

SENATOR MELLO: So you did write a letter to the 
Governor and to Molly Coye; is that correct? 

DR. ANTON-CULVER: Uh-huh. 

SENATOR MELLO: You're really a person that's 
dedicated and has expertise in cancer and trying to curtail what 
I call the most disastrous disease. I think that we as a 
society and a nation have underfunded the research of cancer, 
and there's been a lot of lip service. 



45 

DR. ANTON-CULVER: You're right. I agree with you. 

SENATOR MELLO: I'm not an expert, but I can tell 
you, I looked into the eyes of two of my sister that died from 
cancer. And there's nothing more agonizing to see death take 
about a year from the time they were diagnosed as having cancer 
until the final breath came, and their eyes closed, and they 
died. 

To me, it's so cruel that we are not doing more to 
try to spare the lives of people. And cancer, as you said 
earlier, tobacco being the number one — 

DR. ANTON-CULVER: Absolutely. 

SENATOR MELLO: — contributor, I just — 

DR. ANTON-CULVER: I'll tell you, in this room, a 
majority of the people in this room, if you want to know for 
sure, about 75 percent of the people in this room have a 
relative who either has cancer now or died of it. And it's just 
a very bad situation to see that. 

However, it's one of the conditions that we have to 
keep fighting for. It's not an acute thing. 

SENATOR MELLO: Thank you for your comments. I 
appreciate your position on it. 

DR. ANTON-CULVER: Thank you for asking the 



questions 



CHAIRMAN ROBERTI: Any other questions? 

Thank you very much, Doctor. 

DR. ANTON-CULVER: Thank you. 

CHAIRMAN ROBERTI: I think we should break for ten 



46 

minutes, then we will start up with John Dunn-Mortimer. 
[Thereupon a brief recess was taken.] 

CHAIRMAN ROBERTI: Next is Dr. Joyce Lashof, Dean 
Emerita of the School of Public Health, U.C. Berkeley. 

DR. LASHOF: Thank you very much, Mr. Chairman and 
Members of the Committee. I'm Joyce Lashof. I'm the Dean 
Emerita of the University of California, School of Public 
Health, at Berkeley. I'm also currently the President of the 
American Public Health Association, and a member of the Steering 
Committee of the California Coalition for the Future of Public 
Health. 

I empathize with Dr. Coye ' s position here, as once 
upon a time I was Director of the Department of Health for the 
State of Illinois and went through a similar process. 

CHAIRMAN ROBERTI: So you have lots of sympathy. 

DR. LASHOF: I appear here on my own behalf and on 
behalf of members of the public health community of California 
in support of Dr. Coye ' s appointment. 

I ' ve known Dr . Coye for more than ten yeas and have 
followed her career. We have served together on the Executive 
Board of the American Public Health Association, where Dr. Coye 
made an outstanding contribution. 

Dr. Coye ' s background and training is exceptionally 
broad and uniquely qualifies her for the position as Director of 
Health Services . She has combined training in occupational 
health and environmental health sciences with training in family 
medicine, a unique combination. 



47 

She understands the public health issues facing this 
state and the responsibility the Department has to maximize the 
utilization of resources to most effectively protect and promote 
the health of the people of California. 

I am especially impressed with her commitment to 
community-based primary care, with a heavy emphasis on 
prevention, and to breaking down the various bureaucratic 
barriers that characterize our multiple, categorical, and 
fragmented programs . 

Access to care is a priority for Dr. Coye, and she 
sill seek to assure that the medical program — the Medi-Cal 
program is run efficiently and effectively. 

The position of Director of the Department of Health 
Services at a time of a budget crisis is a most difficult one. 
It is increasingly hard to find well qualified public health 
professionals willing to enter state service, and I admire her 
courage in assuming this position at this time. 

Although everyone will not agree with every difficult 
decision Dr. Coye will have to make, we are confident that she 
will consult widely, will act fairly, and will put the interests 
of the health of the people of California foremost. 

And I urge her appointment . 

And I would also, if I may, read into the record a 
letter from Dr. Lester Breslau, former Dean of the School of 
Public Health at U.C.L.A., and former Director of Health 
Services of California during the Brown Administration. He 
writes: 



48 



1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 



"I am writing to support 
strongly the confirmation of 
Dr. Molly Coye as State Director of 
Public Health. My perspective comes 
from having once served in that 
position by appointment of Governor 
Pat Brown, and from knowing Molly 
Coye's leadership in our nation's 
public health community. 

"She is exceptionally well 
qualified to head the Department 
through her training, experience, 
and dedication to public health. 
Dr. Coye has knowledge of what is 
important, insight into how to get 
things done, and diligence to lead 
health efforts effectively in 
California. 

"I am confident that she will 
bring the Department once again to a 
top position among the nation's 
public health organizations, and 
therefore hope that the Senate will 
confirm her appointment. 

"Sincerely yours, 

"Lester Breslau." 
CHAIRMAN ROBERTI: Thank you very much. 



49 

Are there any questions of the Dean? Hearing none, 
thank you very much. 

John Dunn-Mortimer, AIDS Project, L.A. 

MR. DUNN-MORTIMER: Mr. Chair, Members of the 
Committee, I'm Dunn-Mortimer, representing AIDS Project Los 
Angeles. AIDS Project Los Angeles is a private nonprofit 
organization providing social services, health services, and 
education to people in Los Angeles County. 

Dr. Coye has worked with us to come up with brave 
proposals for new programs in this time of budget crisis. And 
I want to cite two programs that are either at least budget 
neutral if not cost savings to the state, and add benefits for 
people with HIV disease. 

The first is the subsidization of health insurance 
premiums for people with low incomes who have AIDS, who are 
spending down, and not only does it prevent a cost shift onto 
the state, but it also helps people maintain services with 
their current provider. So, it doesn't disrupt the provision 
of their care. 

Secondly, under the former Administration, if you 
were — if you had AIDS, and you were on Medi-Cal, in order to 
qualify for home health care benefits, you first had to be 
hospitalized. That was like a strange policy, because the home 
health care program was designed to prevent hospitalization. 

Dr. Coye has moved and actually eliminated that 
requirement, so people with AIDS now can get home health care 
services much more easily. 



50 

In terms of legislative and public policy issues, 
Dr. Coye was a very strong advocate within the Administration 
to urge the signing of AB 11 last year, which mandates AIDS 
education in California's secondary public schools. She also 
has advocated to maintain insurance protections for people with 
AIDS who fact discrimination by health insurers. 

Dr. Coye has brought together community 
organizations, like AIDS Project Los Angeles, to the table to 
form policy and make recommendations on program implementation. 
And she has gone out of her way to begin to develop a true 
partnership with private nonprofit organizations like AIDS 
Project Los Angeles. 

Not only does AIDS Project Los Angeles represent 
the interest of people with HIV disease, we're 75 percent 
funded by individuals and corporations. And we also bring to 
the table the perspective of that part of the private sector. 
So, in including community organizations like ours, it's not 
just an outreach to the AIDS-af fected community, but goes far 
beyond that. 

And again, we strongly urge her confirmation. 

Thank you. 

CHAIRMAN ROBERTI: Thank you very much. 

Are there any questions? Hearing no questions, 
thank you, Mr. Mortimer. 

MR. DUNN-MORTIMER: Thank you. 

CHAIRMAN ROBERTI: Helyne Meshar, AIDS Project 
Hollywood — West Hollywood. 



51 

MS. MESHAR: Senator Roberti and Members of the 
Committee, I'm Helyne Meshar, and I'm representing the City of 
West Hollywood. 

The City has a very unique population, in that 30 
percent of our population are seniors, and 30 percent of the 
population of the City are gay and lesbians . We have eight 
percent of all of the AIDS cases in the County of Los Angeles 
within our city boundaries, and we have two very effected 
populations that are underserved populations in terms of health 
care. 

We're here to support the confirmation of Dr. Coye 
because, on a policy level, her dedication and her ability to 
work with the City has been very positive. She has been very 
accessible, and she has been very inclusive in terms of the 
work that the City does with some of the nonprofit, community- 
based groups in the City. 

On a more personal level and local level, this 
year, because of both the work of Senator Roberti — as you 
know, our Adult Day Health Care Program was a very difficult 
project to start, but with the cooperation, and the help, and 
the patience of the Department of Health Services, the City 
opened for this year the first ever in the nation an Adult Day 
Health Care Program that serves both seniors and people with 
AIDS. It's a very innovative program, and a very creative 
program, and it ' s a program that the Department has worked with 
us on and has been very patient, because it was a very, very 
difficult project to start up since it was the first project — 



52 
first time ever this kind of project started. 

We have — the City has been impressed with 
Dr. Coye ' s commitment to prevention, and to community-based 
programs, and to expansion of access to care for people. And 
with that, we would support her confirmation. 

Thank you. 

CHAIRMAN ROBERTI: Thank you, Ms. Meshar. 

Are there any questions? Hearing none, thank you 
very much. 

I think we have a couple more fans, and then maybe 
we'll get to it. Laurie McBride, LIFE AIDS Lobby. 

MS. McBRIDE: I'm Laurie McBride, Executive 
Director of the LIFE AIDS Lobby, otherwise known as the Lobby 
for Individual Freedom and Equality. 

We have 90 members statewide who are affiliates of 
our organization. We represent AIDS service providers as well 
as gay and lesbian community groups, community organizations. 

I'm very pleased today to be here in support of 
Dr. Coye ' s confirmation as Director of the Department of Health 
Services. We have great respect for Dr. Coye ' s knowledge of 
HIV issues, and her willingness to work with AIDS advocacy 
groups statewide on issues such as — you've just heard from 
other supporters, but specifically, we at the LIFE Lobby want 
to commend Dr. Coye ' s commitment to community involvement in 
regional planning and decision making in response to the HIV 
epidemic . 

Especially, we want to talk today about the 



53 
community involvement typified by the Ryan White Care Act Title 
2 Consortia. The Ryan White Care Act provides federal care and 
treatment dollars for cities hardest hit by the epidemic. I 
think most of you are aware of this. But a lot of Calif ornians 
don't know that the Ryan White Care Act also provides funding 
that goes directly to each state to provide care and treatment 
for nonurban areas, the areas not hardest hit, but still 
definitely in need of care and treatment dollars for the 
epidemic . This money comes under Title 2 . 

In response to receiving these Title 2 monies, the 
State of California embarked on creating a very unique model 
in partnership with the Office of AIDS, and the leadership of 
the Office of AIDS. It was a model of local involvement and 
organization. 

Since Dr. Coye has come to California, she has not 
only supported this process, she has strengthened it. Each 
county or region creates an HIV consortia. Criteria is set on 
consortia membership, which includes community-based 
organizations, service providers on the front line of the 
epidemic, and people with AIDS themselves of all colors. Each 
consortia selects a fiscal agent, conducts local needs 
assessments, and votes on funding decisions for the monies 
received. 

California's plan has become a national model. Now 
only in their second year of implementation, these HIV 
consortia have already become a remarkable testimony to the 
commitment of hundreds of volunteers and their continuing work 



54 
to bring cost effective and live saving services to people with 
HIV statewide. These monies and this process now allows all 
communities in California to develop a community-based 
cooperative model of private-public partnership: 37 consortia, 
representing each and every county in the state are now up and 
running, developing a statewide infrastructure to combat the 
epidemic . 

As Dr. Coye herself can testify, while many local 
health officers welcome community involvement, many do not. 
They're not quite so appreciative. 

Recently there have been end run attacks on the 
consortia process, specifically trying to cut out the community 
involvement and the voting membership of people involved in the 
consortia. 

On behalf of all the consortia, we want to support 
Dr. Coye's support of the consortia process, and our continued 
involvement in it. We think that we bring important news and 
decision making guidelines from the front lines, and that our 
place at the table helps the state save money and provide more 
effective services. 

We know and applaud Dr. Coye's readiness to listen 
to and seriously address the concerns of HIV advocates 
statewide, and we want to urge her confirmation today, and let 
her know that we value her support and look forward to it in 
the years ahead. 

Thank you. 

CHAIRMAN ROBERTI: Thank you very much, 



55 
Ms. McBride. 

Are there any questions? Thank you. 

The next witness is Brent Barnhart. 

MR. BARNHART: Mr. Chairman and Members, my name is 
Brent Barnhart. I represent Blue Cross of California. 

I'll try to be very succinct. It's been a long 
afternoon. 

Essentially, what I wanted to add to the testimony 
you've already heard is that among the many things which Molly 
Coye has brought to her position has her involvement of large 
private insurance companies, such as ours, in addressing very 
real public problems. Basically encouraging us, imploring us, 
involving us in dealing with such issues as access for infants 
and mothers, for the new Check-Up Program, which we hope to get 
underway which involves dealing with the needs of the children 
of this state. 

That is, I think, an indication of her pragmatism 
in dealing with that's available to her, particularly in these 
rather mean budgetary times . How do you draw on private 
resources to enhance the state's efforts? 

Particularly on the eve of what we expected to be 
major changes in our health care delivery system of a design 
none of us know at this point, it's really critical that 
somebody of her vision, and compassion, and her pragmatism is 
in this position. 

CHAIRMAN ROBERTI: Thank you very much, 
Mr . Barnhart . 



56 

Are there any questions? Thank you. 

California Nurses Association. 

MS. CAPELL: Beth Capell with the California Nurses 
Association. 

We're here as well to urge confirmation of 
Dr. Coye. We have found her open and accessible. She has 
reached out to nursing in a way that no other Director of the 
Department of Health Services has in our memory. She has 
spontaneously supported nursing and its central role in the 
delivery, management, and planning of health care in a way that 
we have literally not seen before. 

She has worked with us on a broad range of issues, 
from AIDS, to maternal and child health, to access. And 
specifically on the access issue, she has reminded us of 
something very important, which is that we can solve the 
problem of providing coverage for everyone and still not solve 
the problem of access. That is, it will require substantial 
work on the delivery system in order to assure access for all 
Calif ornians. 

For that reason, we are supporting her 
confirmation. 

CHAIRMAN ROBERTI: Thank you very much. 

Are there any questions? No questions. 

Also, I have letters in support from Health Net and 
from the California Association of HMOs. 

I believe that is the conclusion of the witnesses 
in support. 



57 
Now we generally will take up witnesses who are 
concerned, and we have one, Mr. Arnoldo Torres. 

MR. TORRES: Members, my name is Arnoldo Torres, 
representing the California Hispanic Health Care Association, 
which as 20 clinics with 30 sites. We also represent the 
doctors who in the mid-levels who are in these clinics, as well 
as the patients that we treat. The majority of those patients 
happen to be of Latino and Black backgrounds, ancestry and 
ethnic backgrounds , migrant farmworkers . 

We are in a very difficult position in view of the 
fact that 17 other witnesses have come before you, many 
colleagues, professional colleagues of Dr. Coye. It has been 
made very clear that there's a very positive relationship that 
the Doctor has with Alameda County. I think four or five of 
the witnesses were from Alameda County. That's very positive. 

We were very troubled in the beginning of the 
tenure of Dr. Coye. We were very concerned with the interview 
that appeared in the Los Angeles Times of October 27th. 
Especially troubled by the responses that were given to the 
questions of: 

"How does your Department intend to 
address the shift in the AIDS 
epidemic into the less affluent, 
less educated, often minority 
populations? " 
We were concerned with the response of: 

"How do you get prevention messages 



58 
to immigrant and minority 
communities?" 

We have and are extremely well aware of the 
operations of the Department of Health Services. We know every 
program that they operate. We try to work with the Department 
and have been very fortunate that there are many people who 
work for Dr. Coye who have been extremely helpful in sitting 
down and discussing matters with us. That process continues to 
be improved on, and we're very pleased about that. 

We are not here today to indicate to you that we're 
concerned that there have been budget cuts . We ' re not here to 
indicate to you that we're concerned that our programs have 
been reduced. 

What we ' re here to talk about is the concerns that 
we had up until February. Some of these concerns persist to 
this day. We were concerned that that consultation process, 
that many of the witnesses prior to myself have talked about 
existed with them, we're very pleased that it existed with 
them, but regrettably, we did not feel that it existed at all 
at the level of detail that we felt was necessary on many of 
the issues we were addressing: Healthy Start, the AIDS issues, 
the outreach, the tobacco education media campaign. 

Virtually every program that this Department has, 
we are concerned with ensuring that it is in fact reaching the 
populations that they to target, and that they are serving the 
populations in the most cost effective manner. 

In February, we are pleased to say that with the 



li 



59 
assistance of Jim Belshay and Terry Parker at the Agency, we 
were assisted in establishing a much more open dialogue with 
Dr. Coye. Since February, we have enjoyed the opportunities to 
discuss many more issues than we had prior, with herself as 
well as with her deputies. And we want to indicate for the 
record that we're very appreciative for the work that Ron 
Joseph has extended to a lot of the concerns that we've raised. 
We hope that that relationship continues 

We are very pleased that we ' ve had an opportunity 
to meet with Dr. Coye now and have begun a dialogue to address 
many of the issues that we have raised in writing to you all. 
We are and continue to be very committed to ensuring that 
farmworkers are given some attention, not necessarily in 
resources, but that we are trying to assess what is the best 
way to deal with the population that continues to have 
problems, and is getting worse in view of the economic and 
natural disasters that have afflicted them. 

We continue to be concerned about the issue of 
maximizing these programs of outreach to the population, and we 
are very concerned because we look at the details; we look at 
the very detailed implementation of programs. And it appears 
as if, in all honesty, in the last two months, the relationship 
has been much better. The communication has been better. It 
is our hope that this new relationship, or this new dialogue 
that we've embarked on with Dr. Coye continues. We hope that 
it will be based on substance, and we hope that our concerns 
will be responded to in a substantive manner. 



60 

And as we wrote to you in our letter, it is our 
hope that the process we've embarked on with Dr. Coye brings 
about a more integrated system which respects and includes 
divergent and key providers of care in communities of concern. 
The concerns we represent are not self-interest, and need to be 
heard objectively by Dr. Coye and her Department. 

We will be keeping you abreast of the developments 
on this process, and urge your support for this effort on our 
part. 

It is difficult when you compare what 17 people 
have said. They all represent impressive associations. They 
are people that we work with as well. Some have said things 
that, to some extent, we probably are contradicting with our 
statement right now. 

But we want this Committee, and we want Dr. Coye, 
to understand that we're not involved in this effort of 
advocacy on the part of our community for the sake of being 
liked, or for the sake of having phone numbers. 

We're concerned that the issues we bring of 
substance be addressed in an arena, and that they be addressed 
on a substantive basis. 

We feel much more positive about what has happened 
in the last month and a half, two months. It is our hope, as 
we say in the letter, that this new dialogue will in fact 
continue. 

And we raise this last point. The last Director of 
the Department of Health Services was also a doctor. He did 



61 
not enjoy the type of support that Dr. Coye has enjoyed today, 
with 17 witnesses in support and two letters of support. 

Dr. Coye brings, as one witness said, a refreshing 
perspective because of the extensive and well documented 
qualifications and experiences that she has. 

We simply want to make sure that we — we simply 
want to make sure that the expectations that we have are 
reasonable, are fair, and that in fact, they are what is in the 
best interest of the State of California, and specifically in 
the best interest of the Latino population we are most 
concerned with. And that is exactly where we're coming from, 
and that is specifically the degree of our concerns. 

We hope this Committee will continue to review how 
things happen. Health is an extremely complex and 
controversial issue, but we will not be at this table to 
advocate to you that we're upset with Dr. Coye because she 
hasn't given us money. That is not our concern. 

We want to be heard; we want to contribute; we want 
to participate as partners on a level of respect and of 
dignity. And I think that is the crux of the direction and 
perspective that we carry. 

Again, things have improved, and we are very 
hopeful that they will continue to go in that direction. 

If there's any questions — 

CHAIRMAN ROBERTI: Senator Mello. 

SENATOR MELLO: Mr. Torres, you represent a lot of 
constituents that are in my area, as well as farmworkers, and 



62 
so forth. 

Has it been your experience that in order to have 
access, that we speak so much about, that general clinics and 
persons offering health services to those constituents, namely 
farmworkers and others that work longer hours, the hours have 
to be more flexible so they have evening hours, and you can — 
you know, a certain number of evenings per week, and even on 
weekends, where people can get in? 

My experience is that people are working as much as 
twelve hours a day, Monday through Saturday, in many cases, and 
just can't have access to the health services that are 
available in our areas. 

MR. TORRES: Yeah, there's no doubt. Many of the 
clinics who are federally funded, as well as state funded, 
operate with those flexible hours . These are things that 
Dr. Coye is very well aware of, having done a lot of academic 
work in the Valley. She knows many of the clinic directors in 
Coachella. She knows several of the clients, specifically the 
clinics that I represent here today. 

The concern that we ' ve had on the farmworker is 
that prior to Dr. Coye coming on board, you've had four years 
of drought; you've had a freeze; you've had the white fly; 
you've had the flight of agricultural jobs leaving to Mexico; 
you have had the earthquake. And we have yet to see any 
specific, concrete action from the state that attempts to 
address that issue. 

We ' re not looking at resources . We ' re looking at 



63 
leadership that says, "Okay, let's put together a task force 
that allows us to examine the implications for the farmworker 
population in view of all these things, and let's work with the 
federal government to try to see if in fact they can put more 
resources in this state." 

There's a Farmworker Coordinating Council that 
Polanco legislation created. Regrettably, that is not the 
exclusive mission of that Coordinating Council. It's 
bureaucracies, and only one group of nonprofits are involved in 
that effort. 

These will be things that we want to discuss with 
Dr. Coye in subsequent meetings that we are pursuing with her 
now. She has been very participatory in the cooperative 
agreement process with a number of the clinic associations that 
have a lot of interest with farmworkers. 

But again, we have yet to see the movement in this 
direction. And again, we're not — we don't have the 
expectations of new monies . What we have is that expectation 
of some leadership, of acknowledgment that this problem exists, 
and trying to prepare for how to deal with it the best way we 
can with what we've got. 

SENATOR MELLO: Let me ask you another question. 

Again, in your opinion, do you think that there's a 
greater need in reaching the constituency that you mentioned by 
having an outreach program that could inventory family health 
needs, and try to refer them to appropriate medical services? 

MR. TORRES: Yeah. This is — this is what I think 



64 
Dr. Coye ' s attempting to do with the managed care approach. 

The concern that we've had with managed care 
systems is that in order for clinics to get into that, there's 
going to have to be technical assistance, and there's going to 
have to be some investment in trying to develop the 
infrastructure in order for these clinics to get into managed 
care, or in fact to create managed care systems on their own. 

Again, this is an issue that many clinic 
associations have raised, and I'm sure it is not at all new to 
Dr. Coye. But it is an issue that we are going to be looking 
for some substantive response from the Department to understand 
if, in fact, they're going to be able to assist clinics in 
being able to create those types of systems that are helpful. 

The other point on farmworkers, and this is an 
issue that we, again, will try to raise in great detail to 
Dr. Coye, and again, I think she's very well aware of it, and 
that is, you have a lot of categorical programs that are not 
focusing enough on the farmworker population. One of those 
that we've discussed with her is the AIDS program. We are 
finding more and more farmworkers that are getting hit by HIV 
positives, or simply having AIDS cases in their communities. 
They are going back to Mexico, taking the illness with them, 
infecting other family members in villages. There are a number 
of articles that have been appearing in national newspapers 
throughout the country. 

We feel that there has to be a way to try to 
integrate that element into what the Office of AIDS is doing. 



65 

And if it's not a question of money, then maybe it's a question 
of trying to have primary care clinics be more responsive in 
trying to work with the clinics to do more than what they've 
been able to do to date in the AIDS issue with farmworkers. 

But again, this is another issue that we want to 
try and embark on with Dr. Coye, and try to move on in a 
positive, constructive fashion. 

SENATOR MELLO: Thank you very much. 

MR. TORRES: Thank you, Senator. 

CHAIRMAN ROBERTI: Senator Petris . 

SENATOR PETRIS: Usually when you appear before us, 
you're representing another group, and that is on 
discrimination problems in state government, or lack of 
affirmative action. 

Have you seen any problem in the Health Department 
with respect to that? I understand there have been some 
complaints, but I realize it's the biggest department we have, 
so I'd be surprised if there weren't some. But there have 
been, I understand, some complaints, some lawsuits, some people 
have left. 

Have you run across that in your review of this 
Department? 

MR. TORRES: This Department, as you said, has 
historical difficulty with moving Hispanics and hiring 
Hispanics. It has been very far down on the scale according to 
the State Personnel Board's statistics and reports. 

The changes in this Department have primarily come 



66 

about as a result of the budgets. At one time, Dr. Kizer, 
through the Deputy Director Kubanski, created a specific 
position to deal with Hispanic hiring. He actually brought in, 
in essence, like a special assistant to deal with it. 
Regrettably, the budget reductions required this position to be 
deleted. 

We are not aware of any initiatives that have been 
taken by the Department in and by itself to ensure that the 
state force reductions do not result in any disproportionate 
impact on minorities in the Department . 

But at the same time, we are not aware that the 
Department has pursued a policy that is attempting to be any 
more unfair to this population than any other population of 
workers in their system. 

SENATOR PETRIS: What about Black minority members? 

MR. TORRES: There are and continue to be some 
outstanding cases, and some that will probably come in a few 
months, or in some time, that are coming from Black 
individuals, Black state employees. But again, we have not 
found that this is a problem that can be associated with 
Dr. Coye. This is — a lot of that have been there prior. I 
think the outgoing Administration recognized that by trying to 
hire more people to specifically be concerned with recruiting 
and actually hiring. 

But the state reduction in work force has really 
put a squash on the — on all of those positive efforts that 
were going to be undertaken, had they been able to stay in 



67 
place. 

SENATOR PETRIS: Thank you. 

MR. TORRES: Thank you. 

SENATOR CRAVEN: All right. 

Is there anyone else who is due, other than the one 
that I have, which is Dian Kiser, American Heart Association? 

MS. KISER: Good afternoon, Committee Members. My 
name is Dian Kiser, and I'm representing the American Heart 
Association, California and Greater Los Angeles Affiliates. 

First, let me tell you that, like many other people 
here today, I'm in total respect of Dr. Coye ' s credentials. 
They are absolutely more than reputable. I appreciate the work 
she's done with the Heart Association regarding our Food 
Festival . 

But we're here today to talk about Prop. 99, and as 
you know, the Heart Association is involved in risk factor 
control of cardiovascular disease. And we were very active in 
the passage of Prop. 99. And at this particular time, we have 
serious reservations regarding the way these components are 
being implemented. 

This particular area of responsibility comes under 
the Department of Health Services, led by Dr. Molly Joel Coye. 

First, there's been a refusal to sign the contract 
to continue the media campaign, which the Department of Health 
Services has cited as a motivating factor for 33,000 
Calif ornians quitting smoking. This campaign is specifically 
mandated by the Legislature. 



68 

Dr. Coye ' s Department canceled a $1.8 million 
contract with the American Lung Association, and the Lung 
Association had won this contract to help people quit smoking. 

The cancellation came six hours after the American 
Lung Association filed a legal action seeking to compel 
Dr. Coye and Governor Wilson to obey the law and execute the 
media contract. 

The Department of Health Services has withheld 
important scientific research conducted at the University of 
California at San Diego on the effectiveness of Proposition 99 
health education program. We believe this action has deprived 
the people of California from important, live-saving 
information, and represents political interference in the 
scientific process. 

There has also been a reluctance by her Department 
to release in a timely manner the data collected at the 
University of California, San Diego, on tobacco use in 
California to other researchers who want to use this 
information to improve public health. 

The American Heart Association is concerned that 
there's a reduction or elimination of funding for the U.C. San 
Diego Tobacco Use Survey, because one of the investigators 
presented some of the results of their research, namely that 
tobacco use has dropped 17 percent in California as a result of 
Proposition 99 at an open, scientific meeting of the American 
Heart Association in Galveston, Texas. 

In addition, the Heart Association has received 



69 

some calls, some troubling reports, of threats of funding cuts 
to organizations who have received funding through Prop. 99 if 
they publicly discuss the Administration's attempts to redirect 
Prop. 99 health education funds. 

These concerns have led the American Heart 
Association to consider questioning Dr. Coye ' s confirmation. 
We are indeed concerned, but we would like to suggest a 
positive alternative. That would be to defer her confirmation 
until she has had an opportunity to remedy the problems that 
have been created in implementation of Prop. 99. 

During this period, we would hope that the 
following would occur: to execute the media campaign and the 
contract that has been awarded, and see that the contractor can 
continue to use the campaign free of political interference; to 
also reinstate the American Lung Association's contract; to 
reverse the cutbacks on the University of San Diego Tobacco 
Survey and see that the contract is renewed with no change in 
scientific leadership; and also to drop efforts to reduce the 
health education account below the 20 percent of tobacco tax 
revenues mandated by the people of California when they passed 
Proposition 99. 

If these concerns can be resolved in her 
Department, we would anticipate that the American Heart 
Association would support her confirmation. 

In any event, we respectfully request that the 
opportunity be given for resolution of these concerns . 

Thank you for your consideration. 



70 

CHAIRMAN ROBERTI: Thank you very much, Ms. Kiser. 

I think we'll have Dr. Coye respond to everything 
at the conclusion of the witnesses. 

Is there anyone here in opposition? I don't see 
any opposition. 

I have a few questions myself. 

Many of the community health care organizations 
have expressed degrees of concern on their budgetary portions, 
which is understandable. And my question is, are you working 
on a system distribution for equitable allotment of health care 
dollars to the community care organizations, which really are 
for many people, especially in poorer neighborhoods, a primary 
source of health care? 

DR. COYE: Yes, Senator. I think I know what 
you're referring to. 

For the last 15 years, at least the last 10 years, 
there's been a federal program allowing cooperative agreements 
between states and the federal government for support of 
primary care. And for some reason, that had never been done in 
California. 

When I came in, we pushed that through and got the 
cooperative agreement established last fall. That brought in 
$900,000 of new federal money in support of primary care. 

One of the first tasks of that cooperative 
agreement is to come to a consensus agreement among the primary 
care clinics on criteria for distribution of further funding, 
so that this will be on an objective, openly reviewed basis. 



71 

We're very concerned, especially given the shortage 
of funds and the hard feelings that often result from that, 
that the process be above reproach. So, we are working that — 
working on that. I've been to the meetings myself, and we're 
coming up with criteria for the distribution of funds. 

CHAIRMAN ROBERTI: Very good. And those will be 
established, or are you going to publish those, or are they 
going to be — 

DR. COYE: I assume so. We haven't specified it, 
but it certainly — 

CHAIRMAN ROBERTI: So that everybody knows the 
process. 

DR. COYE: — all the clinic associations are 
represented in the process, and we'll let them all know. 

CHAIRMAN ROBERTI: Very good. I guess that also 
gets to the other point that was raised, I believe, by 
Mr. Torres, but it's sort of a subliminal concern from many 
organizations, that you maintain a continuing dialogue in the 
allotment of contracts and specification of services, and 
things of this nature, which I take it is going to be your 
policy. 

DR. COYE: I can only express my puzzlement, since 
Mr. Torres was in on a number of many meetings that I had last 
fall in which I became acquainted with many of these groups, 
including the ones that he represents. 

CHAIRMAN ROBERTI: You talked about the federal 
dollars. I assume that includes also state contracts pursuant 



72 
to state money, you will follow the same — 

DR. COYE: No, this was for the — 

CHAIRMAN ROBERTI: — the same process. 

DR. COYE: Yes, expanded access to primary care; 
all the monies that we would have any influence over. 

CHAIRMAN ROBERTI: Very good. 

With shortening budget dollars — I'll ask you a 
question that I don't necessarily have a good answer when 
people ask me, but still I think we have to address the 
question — what are we going to do — 

[Laughter. ] 

CHAIRMAN ROBERTI: — as far as health care? I 
mean, are there efficiencies? Are there any, you know, rabbits 
that you can pull out of the hat, or something where we can 
expand health care, especially in areas that aren't currently 
serviced with obviously a reduction in the budget? 

DR. COYE: There's — I think that there are two 
sides, or two ways to answer that. 

Ultimately, to truly solve the problem of access to 
care for everyone in the state, we probably will need new 
money, because — at least initially, in the first five to ten 
years . The reason for that is that we have now almost 7 
million uninsured. We have 4-1/2 million on Medi-Cal, which 
significantly underpays for major parts of — in comparison to 
the usual, customary fees for physicians and many other 
providers . 

We also have under insurance, in the sense of a lot 



73 
of people who can't afford their co-pays and deductibles. 

So, while there are clearly major efficiencies and 
savings to be made in restructuring the health care system, 
whether you could do those first in enough way to generate 
enough of the money that you wouldn't need to prime the pump 
with start-up money is highly questionable. 

So, I would hold that at least in the first decade 
of major health reform, we probably will need new money up 
front, and that represents a major challenge for Governor 
Wilson, for Russ, and for myself, that we very much want to 
make major inroads on, if not solve, this problem, and we are 
faced with a situation that none of us anticipated in terms of 
the depth of the crisis that we're in right now. 

There is a second half to the issue of reform, 
however, and that's restructuring the system. Restructuring 
the system can make inroads in all three of the traditional 
areas that we worry about: cost, quality, and access. It also 
can help to solve something which I believe the public is 
rightfully very concerned about, which is not usually named 
under those, which is security: people who know that their 
health benefits today may not be much help to them a year or 
two from now. 

So, we can, and actually through what the Governor 
proposed in his health reform package, we'll do many of these 
things. Uniform billing to simplify the system enormously. 
Developing practice guidelines so that we begin to target 
effective practices in medicine. A state purchasing pool, so 



74 
that we can bring down the cost to small employers of health 
insurance. 

The market insurance reform that the Governor 
proposed will do a great deal to stabilize the market. In 
itself, that won't make insurance a lot more affordable; the 
pool will do that, but it will at least make it less like that 
we'll have the same escalating rates of uninsureds we currently 
have. 

So, I would not stay in government service if I 
didn't think there were things you could do in tough times. 
There's no satisfaction from making absolutely terrible cuts in 
programs that you know are very good. 

The reason to be involved in it is for the changes 
that you can make, and to have those changes make sense and be 
coherent in building towards the possibility when you'll have 
money to invest. 

CHAIRMAN ROBERTI: Thank you, Doctor. That's very 
encouraging. 

Let's see if I have any other questions. No, I 
guess I do not. 

Senator Mello. 

SENATOR MELLO: I wanted to — Senator Morgan, in 
introducing you, said something that sort of caught me ear. 
She said, "Don't hold against Dr. Coye budget decisions that 
have not yet been made . " 

She's talking, I guess, about the forthcoming 
budget . 



75 

I think what people are concerned about, it's not 
happening in the forthcoming, but the Governor's budget that 
was introduced took money away from Prop. 99, the tobacco 
money, and shifted it over to perinatal care, away from 
programs that would have helped heart and cancer diseases, 
which is our number one and number two killers in the United 
States. And also, the early Check-Up Program that took $44 
million out of the mental health program. 

Now, my question to you, then, to what extent were 
you — what advice, or were you consulted by the Governor in 
regard to the transfer of these funds? 

DR. COYE: Okay, yes. And I'd like to go back and 
address in some greater detail, particularly the Prop. 99 
issues, because I know you, and Senator Roberti, and Senator 
Petris are all concerned about that and very interested in 
seeing the development of stronger public health programs over 
time. 

CHAIRMAN ROBERTI: Actually, if I could interject 
one thing on Senator Mello's point, on the Proposition 99 
money, I favor the whole concept of public health as the money 
is being used; however, a concern of mine is that the public 
clearly voted for what I think was understood to be education 
programs, as Ms. Kiser, I believe, had indicated. And I think 
that's an aspect of it as well. 

That point doesn't necessarily, in my mind, become 
the Department's decision as to the prioritization of dollars, 
but frankly, we received our instructions as to what to do. 



76 

If you could sort of address it also in that 
context, I'd appreciate it. 

DR. COYE: Yes, and I think there were some other 
things raised earlier that I'd like to address, too. 

First of all, let me state unequivocally, my 
background, all my work for a long time has been in public 
health. And there is no question about the link between 
tobacco smoking and many serious diseases, including cancer. 
There ' s no question that this is an absolutely imperative 
public health problem, along with AIDS, and many other 
imperative health problems . It's something which I have worked 
a great deal on. I've taken controversial stands in support of 
eliminating tobacco smoking in many situations in the past. 

And I believe very much that the program in 
California has been an enormous success; has been something 
very, very important. And I can say this, because I didn't 
have a hand in creating it, that those of you who did have a 
hand in creating it, created something that really is a 
national model and is terribly important, and is very, very 
successful. 

That ' s why it is even more painful for me to come 
into a situation like this and face the necessity of proposing 
a redirection of funds . 

And of course, the Governor consulted with me. I 
would have been insulted not to be consulted on a decision like 
this . 

But that also makes it all the more painful. I 



77 
can't hide on this one. This is a tough decision, and this is 
part of what you do if you are in these kinds of positions, is 
have to deal with it. 

I'd like to go through, though, the rationale of 
why we made that decision and share with you the thinking 
behind it. 

First of all, I think it's very important to 
understand that this was only one of two — or actually there's 
a couple of other smaller — but two major purposes of the 
initiative in the legislation that actually enacted the 
initiative. Over 68 percent of all of the tobacco tax monies 
goes to pay for care for the medically indigent. The public 
saw a very important purpose in health education. They also 
saw as important or maybe even a more important purpose in 
terms of taking care of people who are medically indigent. 

What we have proposed in redirecting monies is to 
move more monies from the health education account into the 
care of the indigent. And so, I would argue that it is 
consistent with the overall intent of the initiative, but what 
it has done is alter the proportion. 

That requires a four-fifths vote. It requires your 
decision. It is a proposal. And I think it merits not only 
here but in the future, prolonged, detailed discussions about 
exactly what the advantages and disadvantages of such a 
redirection would entail . 

It's a very serious decision, and it is not a 
decision that we take unilaterally. It's one that ultimately 



78 
you all will have to be involved in making as well. 

I also think it ' s important to recognize that the 
services that we are targeting in terms of the redirection 
include specifically things such as AIDS, the increase in 
testing in AIDS, the OBRA prenatal care program and county 
medical services program, caseload expansion, which do meet the 
definition in the initiative of new state-only services, rather 
than back-filling Medi-Cal, and things like that. 

After going over this and reviewing it more 
carefully, we decided that that made a much more appropriate 
fit in terms of the intent of the legislation. 

We also are leaving major parts of the programs 
intact. The health education account will still have $55 
million in this current year, and $45 million in the budget 
year. So that in fact, this is not stripping this. It's 
somewhat like, unfortunately, my analogy to the Cancer 
Registry, in the sense that we are attempting to keep the core 
there, and in fact, a very hefty core, much bigger than any 
other state in the country, even on a per capita basis, is 
spending on education, on cancer, and cigarette smoking, 
keeping that intact. 

I take personal responsibility particularly for the 
decision on the media campaign. When we faced the necessity to 
make these kinds of budget decisions, we looked at two options. 
One was to primarily cut the community groups, and the second 
was to go after the media account, the media campaign. And in 
that regard, because I do believe very firmly that this is a 



79 
temporary, one or two year redirection of the funds, the 
question was: where are you going to do less damage? 

You can't do no damage with either of the cuts. 
Neither of these cuts are defensible because they're not doing 
damage. Both of them are hurting something that's important 
that you want to do. 

But in my experience, and I'm sure yours, working 
with community groups, to take down a community group for a 
year or two may make it impossible ever again to build that up 
again. Community groups lose heart. They don't continue to 
hang together if they don't have some wherewithal. 

A company that runs media campaigns, you can cut 
the contract for a year or two, and then you can come back and 
negotiate with them and start it up again. 

So, that was the basis of that thinking. 

Now, the media campaign is important to the 
community group work, just as the media campaign would not be 
effective without the community group work. So, an alternative 
would be to cut half of each, to do a little of each. And that 
may arguably be a better approach, but I think it's important 
that you understand what my thinking was in having to make that 
very difficult decision. 

I also would like to add that I am completely 
unaware and doubt what has been told to you about the American 
Lung Association. They have, if I understand correctly, a $1.9 
million contract for media outreach, which was augmented 
further by $450,000. Actually even more than, Senator Petris, 



80 

you were mentioning. That's still in effect here. It was due 
to expire on October 30th. There has been no cancellation, and 
I'm informed that no proposals were received for further 
funding. And that funding cycle has passed now. 

So, I'm not sure what your reference is to. It's 
extremely disturbing. I mean, it really is not the kind of 
thing I ever would want to have done. It's certainly not the 
kind of thing that I, or the Agency, or my deputies would ever 
involve themselves in that kind of retribution. 

And if you can give me further information, I will 
look into it, because I would take it very seriously. 

SENATOR PETRIS: Well, I'm very pleased to hear 
that. It was repeated by the American Heart Association. 

DR. COYE: I know, but I don't know where this 
comes from. 

SENATOR PETRIS: And in both instances, the 
information that came to me was, that within six days after the 
filing of a lawsuit — six hours. 

DR. COYE: Right. 

SENATOR PETRIS: Excuse me, six hours — 

DR. COYE: There has been no — 

SENATOR PETRIS: — it was canceled out. 

DR. COYE: — cancellation. 

SENATOR PETRIS: Well, then that needs to be 
checked out. 

DR. COYE: And I will get back to you right away on 
that. 



81 

SENATOR PETRIS: I'll be very happy to apologize 
for throwing that at you if it turns out to be the other way. 

DR. COYE: And I certainly would apologize if it 
turns out that that happened, but I don't believe that it 
happened . 

SENATOR PETRIS: Well, see, that came to me as a 
series of two or three actions that to me seemed to be very 
harsh. One of them, suppression of the research reports of the 
University of California. Another one, some legislative 
offices were told that they couldn't answer any questions on 
this 99 thing, and employees felt frightened and intimidated. 

Now, I don't have names, but that could be checked 
out. My office is not one of them. 

But there were — Department of Health Services ' s 
contract monitors informed Prop. 99 contractors that the Lung 
Association's legal action will cause all the contractors to be 
defunded. And of course, if they win the lawsuit, it'll 
probably have the opposite effect. 

And the question is, do you know anything about 
that? Are they acting with your knowledge or any of your top 
deputies ' knowledge? 

From what I've heard from you so far, I would — it 
would kind of be very difficult to believe that, but it's been 
alleged. And part of this hearing is to clarify those things 
and make sure we get the right picture. 

DR. COYE: If I could address a couple of those, 
unless you have another — because I think that is in the same 



82 
category with some of the other things that were raised by the 
Heart Association. I would like to do that. 

SENATOR PETRIS: Yes, I'll let you answer those. I 
won ' t go into it any further . 

DR. COYE: Just in no particular order, the issue 
of the contract monitors, that certainly isn't anything that we 
had ever intended, or said, or issued. And it came to me as a 
rumor. You know, some friends called and said, "Have you heard 
what people are saying?" And I made every effort through our 
staff to find out, and from all of the management down to the 
direct program management, I was told that, no, there is no 
such word that ' s gone out . 

Now, if we — you know how delicate this is. If 
it's possible to get the names of anybody who actually said it, 
then we can backtrack. But I made very — 

SENATOR PETRIS: I'll do some backtracking also. 

DR. COYE: Okay. I did make very personal efforts 
to try and make it clear that anything like that absolutely out 
of the question. 

The second issue is the issue of the release of 
research. What happened was a 24-hour hold on the release of 
the report, because when it came out, we hadn't even heard 
about it; it hadn't gone through internal clearance; I hadn't 
read it; nobody had looked at it except the program, and we 
said we need to look at this. 

Actually, it was less than 24 hours. About 12 
hours later I said, "I don't care. I'm not going to wait until 



83 
I get in the office to look at it. Release it now, because we 
can't stand to have the word out there that we're sitting on 
research on something like this." But in essence, the damage 
was already done by simply having held it in order to try and 
find out what it was. 

And I've apologized to a number of people on the 
Tobacco Education Council for that, and we have made it since 
that date available to the press, available to the rest of the 
research community, and everybody else. 

SENATOR PETRIS: So all those that were involved in 
the story have been released? 

DR. COYE: Yeah. 

Another issue was the issue of funding for 
research. I think something in San Diego was mentioned. 

There have been no cancellations retributive — in 
retribution or otherwise that I'm aware of. 

There has been — there have been contracts that 
have ended. I will go back and look into each of those, but 
there is absolutely no intent to take action on anything as a 
result of our proposed redirection. 

There have been in the case of community groups, 
community groups who are currently ending their cycle and 
therefore not being refunded because of reductions in the 
health education account as the result of the three-year 
redirection that the Legislature and the Administration agreed 
on last year and that was enacted in AB 99 and the Governor 
signed last fall, that is now working its way through as those 



84 

contracts end. But it's in no way keyed to the proposed 
redirection now. But those two things may get confused. 

SENATOR PETRIS: I didn't mean to interrupt Senator 
Mello. I was following a point on the same question, so you go 
ahead. 

SENATOR MELLO: Okay, well — 

SENATOR PETRIS: I have questions on other 
subjects . 

SENATOR MELLO: She was answering my question 
about, I was anxious to see what role she played in the 
redirection of the funding from Prop. 99 and also from the 
mental health program to perinatal care and the early Check-Up. 

I guess, as you explained it, then, it was your 
recommendation to redirect the funds that influenced the 
Administration, then, to do that; is that correct? 

DR. COYE: We were faced with the necessity of 
cutting funds, and I had already cut $300 million in our 
Medi-Cal program. I was at the point where — 

SENATOR MELLO: Let me try to get this straight. 
I'm talking strictly about Prop. 99. 

DR. COYE: Yes. 

SENATOR MELLO: The funds there, the money comes in 
from the tobacco tax. 

DR. COYE: Right, but I was trying to explain how 
we made that decision about the Prop. 99 redirection, is that 
it was not that we knew we had to make cuts, and so we headed 
immediately for the Prop. 99 funds. 



85 

What happened is, having made the $300 million of 
cuts in Medi-Cal, we then faced cutting into prenatal care, or 
like the OBRA program, our AIDS testing, a whole series of 
things where I felt at that point all programs should start to 
bear the weight. At that point, we looked at the Prop. 99 
accounts to propose redirection. 

So, it was not a — it was not a first choice to go 
after the money in that. It came up very late in the process. 
Really when we were to the point of choices that were fully as 
painful as that choice. 

SENATOR MELLO: Usually in a year like this, when 
we're really, as everyone knows, we're just short of money for 
our budget, and then some, we hardly look at any new or 
expanded programs because we don't have the money to fund them. 

I mean, here's a situation that we're taking money 
away from programs that the testimony here from Dr. Anton- 
Culver and the lady from the Heart Association, all testified 
that those programs, the money being used there, cut down 
smoking by 17 percent, and no doubt had tremendous savings to 
California by people cutting back on smoking. 

I said earlier about in my own family, between 
heart and cancer, it wiped out my entire family. I'm the sole 
survivor from a large family. And I've had my own arterial 
sclerosis problem myself, but it was hereditary from my family. 

But it sort of doesn't make sense, I think — and 
this is my own judgment versus your professional judgment — to 
continue to short-fund programs that are the number one killer, 



86 
number two killer in our society, and offer a brand new 
program, and very much needed. Perinatal is needed, so is 
early Check-Up and all the others. 

But to me, it just doesn't make sense to cut way 
back on programs that have such a direct effect on the 
population of California. That's where I think I disagree with 
your decision, but I don't have the professional basis to 
evaluate. 

Now, I just want to follow another line of 
questioning. I did hear you on the air, oh, about three weeks 
ago on KCBS. It was a taped program from George Harris. I was 
going to catch a plane to go to Burbank that morning, so here I 
had the radio on, and you — it was a very interesting program. 

But several things that you mentioned there, you 
said we couldn't afford — we can't afford universal health 
care. I think that was one of your statements. And you used 
the word, "managed competition", which is a word that caught my 
ear, because I don't know yet what "managed competition" might 
mean as far as health care. 

And the third point, and you might just cover this 
briefly in a response, is, the Governor announced his health 
plan last week, on April 13th, and I had a chance to read it 
over. And of course, my colleague, Senator Petris, introduced 
Senate Bill 36, which is truly a universal health plan. You 
were quite critical of that plan, as I recall the conversation. 

But the Governor's plan is voluntary, Senator 
Petris, as he's introducing it. It's not mandated at all. 



87 

Employers don't have to. It'll offer a pool to buy insurance 
on a voluntary basis, but everything we have now is voluntary. 
These 7 million people that are uninsured currently in 
California, they can go out and buy health insurance, they just 
can't afford it. 

But if you could just comment, because this is 
going to be important, I think. The vogue issue of '92 is 
universal health care. 

It's embarrassing that California and the United 
States finds itself in only the company of South Africa in 
providing no health care for all of our people. It's really 
embarrassing. 

We have money to make grants and loans all over the 
whole world to people who have a good health care plan, and 
here we are here at home without one . 

So, I'd just like to have you just give us a little 
bit of your philosophy on how you think we ' re going to meet the 
needs of covering the people, the 7 million people in 
California, in a way that will have a delivery system that'll 
work. 

DR. COYE: I have all of my life in public health 
supported work towards a national health program of some kind, 
and as a member of the Executive Board of APHA, American Public 
Health Association, we strongly support that and have been 
monitoring various proposals federally on that topic. 

When I first came to California, knowing the 
history of AB 350, and all of the various attempts in 



88 

California in the past to solve this problem, and in my 
discussions with Governor Wilson, given his interest in this 
area, his interest in trying to solve it, I had certainly seen 
and still do see us working towards a solution in the State of 
California. 

What has hit everybody like running into a wall of 
bricks is the economic crisis that we're facing right now. 
Given that crisis, I don't believe that this year is the year 
to impose significant new employer mandates or payroll tax as 
another way of sort of a mandate in the sense of an economic 
burden that would support the cost of health insurance just in 
this state. 

It pains me to say that, because I have, in New 
Jersey and here, always thought that when the national 
government just clearly wasn't going to be able to deliver, you 
ought to try and make steps in the states to do something about 
it. 

But I also believe, because of my background in 
occupational health, that just about the worst occupational 
disease is unemployment. And that to seriously risk many more 
families not having jobs because this economic burden is too 
much to impose in one state at this time is a risk that I feel 
very uncomfortable with from a public health point of view. 

We have certainly tried in the budget to protect 
the basic core of health services, but we're in a situation 
where we can't even provide, given the economics of the state, 
for the medically indigent and Medi-Cal people everything that 



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we think they need, how we're going to come up with the 
financing to float care for all of the rest of the population 
is at least an economic decision that I think we have to weigh 
very, very carefully. 

And as I explained earlier, I think that we can 
make major changes while we're in the middle of tough times. 
We can make structural changes so that our system looks more 
like the kind of system you would want to operate if you could 
afford to solve the access problem. Specifically, if I can 
take a second to refer to what you were referring to in terms 
of Senator Petris ' s proposal, my specific — I don't know if 
you wanted to say anything before I — 

SENATOR PETRIS: Well, yeah, if you don't mind. 
[Laughter. ] 

SENATOR MELLO: Maybe you ought to wait, because 
he's surely going to ask the question. 

SENATOR PETRIS: What my bill does is the same 
thing you're doing with Prop. 99. It's redirection. 

Under my bill, we'd take the same amount of money 
that we're now spending — $72 billion on health care premiums 
and all — and redirecting it in a more efficient manner. So, 
we both like redirecting in the health field. 

[Laughter. ] 

SENATOR PETRIS: That's the only comment I want to 
make at the moment . 

DR. COYE: Okay. 

But to explain the qualms that I had, is that I've 



90 
actually spent a fair amount of time looking at the Canadian 
system, because I think it's a very important one and it's been 
very successful on its own terms, and I've read the GAO study 
and a lot of other things that would be important to be aware 
of in evaluating it. 

My primary hesitancy is, I ran an all-payer system 
in New Jersey, a hospital rate setting system, essentially. 
And what the Canadian system is, it's negotiating separately 
with the hospitals and the physicians. And I think that — and 
this is what I mean by managed competition — I think we can 
actually do better than that. 

I agree very much with the idea of working towards 
a system where everybody is guaranteed health insurance. And I 
think that it is a government responsibility to make sure that 
that happens. And I want to be very clear — 

SENATOR PETRIS: Does that mean you'll be 
continuing activity and interest on your part trying to find 
the best solution? 

DR. COYE: Definitely. That is — when I talked to 
the employees of the Health Department in my first week on the 
job, and I said, "What did I come here to work on?" Number 
one on my list was to solve the access problem. 

SENATOR PETRIS: See, the thing that impresses me 
with the GAO study, and the New England Journal of Medicine 
report, is, without cutting one penny in doctor fees or 
hospital fees, or any medical provider, by simply centralizing 
the paperwork, we save $63 billion a year nationally, 



91 
according to one study, and $83 billion nationally according to 
the other. That's before you even get to the question of how 
can we be more efficient in the operation of our hospitals, and 
our individual offices, and our clinics, and so forth. 

But anyway, we'll talk about that another time. 

DR. COYE: Okay. 

SENATOR PETRIS: I'm glad that Senator Mello raised 
the question, because I've written you a letter on that and 
asked you where do you think we should go, what can we do, and 
so forth. 

DR. COYE: Right. 

SENATOR PETRIS: So, we'll come back to that. 

DR. COYE: I would look forward to that. 

SENATOR PETRIS: Thank you. 

SENATOR MELLO: I'll turn the Chair over to Senator 
Petris. 

SENATOR PETRIS: I'd like to get on to a couple 
other things . 

Well, let me start with questions from a doctor in 
my area who is active in the San Francisco — he's not active 
in it, but he has informed me about a change in the — I guess 
that's a budget move, but it's in the California Children's 
Services regional office, merging that with Sacramento. 

We seem to go through this kind of thing every once 
in a while. We had a running battle on transferring a lot of 
people from the Health Department in Berkeley up here to 
Sacramento, and some of them are still going back and forth 



92 
everyday on the bus . 

This particular communication indicates how many 
counties are presently being served by that office in the 
Children's area, and it's 24 counties. And he's expressing the 
fear that if that is the closed — he doesn't say it's going to 
be closed, he says it's threatened. It appears to be on the 
horizon — it would be a tremendous setback for patients and 
families, and so forth, in all that basin covered by that 
regional office. 

Can you comment on that? 

DR. COYE: Yes. In the short run, his concerns are 
alleviated, that as we went through working on this issue, it 
turns out that that wasn't something that got targeted for 
closing now or consolidation. 

Long-term, however, I really wouldn't want to 
construe my answer as offering reassurances, because I think 
that as we go through the next two years in the health system 
in the state, we're going to be looking at restructuring a lot 
of things . And this would not be at all targeted at the San 
Francisco office. I have no idea what will fall out of the 
woodwork in terms of how the reorganization would have the 
implications for that. 

SENATOR PETRIS: So that's still in a problematic 
stage? 

DR. COYE: No, no. 

SENATOR PETRIS: It's still a problematic stage as 
to what ' s going to happen? 



93 

DR. COYE: No, it's not now. It's in normal 
status, no challenge to it now. But I don't want to make that 
sound as though I'm guaranteeing for three years that there's 
no changes . 

We have no plans to target it for anything, but we 
may make changes in the CCS system, working with the CCS 
advocacy groups, that might imply some changes for that office. 

SENATOR PETRIS: Well, let me read the sentence 
here. Maybe it's mistaken. I mean, I see I got some mistaken 
information before, so — 

DR. COYE: No, he wasn't mistaken. We were 
thinking about it, but as we went through further looking at 
the CCS organization, we decided we didn't need to do that. 

SENATOR PETRIS: I see, okay. Thank you. 

We all kind of center our attention on our own 
stuff, legislation that we've carried. And fortunately, I've 
had a lot of legislation in areas in which you've been very 
active long before you came here to California, I'm happy to 
say. 

One of my bills, SB 495, a few years ago, had to do 
with the Occupational Health Program within — I forget. I 
think it's within OSHA, but I'm not sure. 

DR. COYE: Did you establish HESIS, the one that's 
in Cal-OSHA funded, but over in the Department of Health? 

SENATOR PETRIS: Yes, it has to do with 
occupational-related injuries and diseases, and so forth, the 
flow of information and all that. 



94 

How's that coming along? I've been hearing stories 
that it's been crippled and cut back. 

DR. COYE: Let me — 

SENATOR PETRIS: Can you just tell me what's 
happening there? 

DR. COYE: First of all, I want to be really clear, 
because part of it is general funds that comes through the 
Department of Health Services for the Occupational Health 
Program, and part of it comes through DIR to Cal-OSHA to HESIS, 
and I don't know which piece you're referring to. 

SENATOR PETRIS: I was involved in both of them, 
but let me see. It's specifically relating to SB 495, which is 
way back in 1985. It's called the California Occupational 
Health Program within the Department of Health Services, and 
it's to investigate the causes of work-related injuries and 
illnesses. 

DR. COYE: Right, so it's not the DIR part, it's 
our part directly. 

SENATOR PETRIS: That I was involved in also. 

DR. COYE: I think what you're referring to is 
personnel actions that occurred within that program. 

I've actually known that program for a long, 
because when I started the Occupational Health Clinic at San 
Francisco General, I knew some of the people involved who 
actually were doing occupational health before that even got 
established as a formal program. And when I worked with NIOSH 
up to '85, I knew a fair amount about it, and in professional 



95 
associations, have kept in contact with some of those people. 

There was — there were some personnel changes , and 
from my review — and I looked at this when I came back in and 
had a thorough presentation on all the programs currently 
ongoing — it looks like to me we've actually strengthened the 
program in the reorganization. It is my training and my 
background in an area that I would care about very much. 

In New Jersey, as a matter of fact, we did so well 
in that area, and I'm receiving the annual award from the 
American Conference of Governmental and Industrial Hygienists, 
which is the highest association of hygienists in the country, 
in June, in recognition of what we achieved in New Jersey. 

I have no desire to not do as well here. I care 
about it very much. 

SENATOR PETRIS: Are you getting a lot of reaction 
from those changes, personnel changes? 

I understand one of the doctors believes that it's 
a very serious disruption of the program, to the point of 
irremedial harm, which is a pretty severe analysis. 

DR. COYE: Unfortunately, that individual is 
currently — has brought grievances and is going through a 
personnel process. I think it's the Skelley hearing now. But 
because that is their opportunity to present their side of the 
story, this person's side of the story -- and you know, there 
are different sides to a story — I don't want to prejudice the 
outcome of that. We will be investigating it fully. 

The only thing that I can comment on in this case 



96 
is the allegations brought against the individual. And they 
are — I can actually describe them, but I'd rather not. They 
are very serious . 

SENATOR PETRIS: No, I wouldn't want to ask you to 
go into that . 

DR. COYE: They're very serious, so we are taking 
this issue very seriously and looking into it. 

SENATOR PETRIS: Okay. 

I have one or two others . I think we covered the 
rest pretty well. 

Now, in connection again with this Prop. 99, I 
guess it's going to be around for a long time. I am told that 
at one point, when the League of Women Voters of San Francisco 
got involved in this issue and arranged for a public discussion 
of it in San Francisco, the Department was going to take a part 
in this. I guess the League was actually sponsoring it. And 
everything was ready to go, and all of a sudden, it was 
canceled. 

DR. COYE: They canceled it? 

SENATOR PETRIS: Allegedly because the Department 
changed its mind and wasn't going to participate. 

Now, I don't have a date on that, but does that 
ring a bell? 

DR. COYE: Yes. I didn't know it got canceled. 

SENATOR PETRIS: It was on those Prop. 99 cuts. 

DR. COYE: No, I know. And I've actually spoken 
fairly widely on it in meetings, on radio, in the newspaper, 



97 
and everything, on this. I don't shrink from these occasions. 

I know on this occasion that neither I nor my 
deputies could go, and I know that I suggested that we request 
our Program Director, Dileep Ball, to do, or Jackie Durrer, 
who ' s the person under him who works . I didn ' t hear back 
whether they got to go. 

If nobody was available and that's what resulted, 
I'm very sorry, but I didn't know that that — 

SENATOR PETRIS: The allegation is that the League 
of Women Voters, along with other groups, planned a forum. 
They invited the Governor — the Governor's Office, and you or 
your office, and the critics of the program, to all come 
together and discuss the issues. And on the day before it was 
to take place, it was suddenly canceled after calls from 
employees of the Department. 

DR. COYE: You mean — 

SENATOR PETRIS: Including calls from employees of 
the Department, including my good friend Betsy Hite, allegedly, 
which led them to conclude that they should cancel the meeting. 

The question is, do you have any knowledge of that? 

DR. COYE: I'm absolutely sure that there was no 
communication from me or Betsy, or any of our staff, suggesting 
that they ought to — that we wanted them to cancel it. There 
may have been a communication that we couldn ' t provide someone 
of a level that they thought was appropriate, despite our 
efforts. 

I think — I have no idea who was offered to go, 



98 
and I can get back to you with that — or to them, but we were 
trying to arrange for the League for Jackie — 

SENATOR PETRIS: I'll have to get back to you, too. 

DR. COYE: Yes, but this was not anything other 
than scheduling issues. Because I have broadly written, 
spoken, appeared, participated in discussions of this kind. 

SENATOR PETRIS: Well, I know you've been on 
national t.v., for that matter. I know you've discussed it 
publicly. 

DR. COYE: It's not the way I first wanted to be on 
national t.v. 

SENATOR PETRIS: Let me ask you a general question. 
I think this is probably my last. 

Senator Mello touched on it. It has to do with 
priorities, and extremely painful things you've had to do in 
making these cuts . 

I can see that you didn't get any joy out of this 
at all. 

Suppose the recession ends very soon, and hopefully 
we get lots of money. What are your priorities on the use of 
the additional money? Let ' s say it ' s more than we ever had 
before. 

DR. COYE: I feel — I have a four-year-old, and I 
feel like some of these questions: a little bit more; a lot 
more; or a lot, lot more? 

[Laughter. ] 

DR. COYE: I would say probably, if it was a 



99 

moderate amount more, just restoring some of the things we've 
had to cut would be a big step forward. 

If it's truly a lot more, if it's the kind of order 
that California used to have — and I don't know if we're ever 
going to go back to that economically — but if it was really 
on that order, my highest priority is making sure that if there 
are further steps in prevention that are even more important 
than access, that we do those first; things that we know are 
even better. 

SENATOR PETRIS: That would still be a high 
priority? 

DR. COYE: Yeah, and then to solve the access 
problem . 

SENATOR PETRIS: Yeah. 

DR. COYE: Because I also — and I've said this to 
my staff in staff meetings a lot, and publicly to the 
California Association of Public Health North, and others — I 
really think until we solve the access problem, we'll never be 
freed of the sort of monkey on our backs of the problem about 
access in order to devote all our attention to prevention, 
which is really what our training is. 

SENATOR PETRIS: I can't help but say that, along 
with the others, I'm very impressed with your credentials, and 
your background, and your track record. Pesticides, for 
example, I've been involved in that for years and years. I'm 
grateful for what you've done in another arena for that. 

This doesn't apply to you, but this is just my 



100 

parting comment, and you can answer if you like, but it's 
probably directed more to all of my colleagues. 

I've said this in subcommittee meetings on the 
budget: when we get into a crunch like this, it makes us long 
for the good-old days when those liberals were in charge, and 
all they did to solve the problems was throw money at it. 

And my answer is : at least we had money to throw 
at it. 

[Laughter. ] 

SENATOR PETRIS: We did a better job of managing 
the economy, so to speak. So, let's keep that in mind, too, 
that everytime we have to scramble and fight each other to 
equitably allocate meager resources, I think of the days when 
we didn ' t have to do that . 

That's why I asked you, if you got a whole bunch of 
money, what would you do. 

So, I thank you, and I wish you well. 

CHAIRMAN ROBERTI: Thank you, Senator. 

I'd like to also comment that we have on file 43 
letters in support, as well as numerous instances of the 
Members being importuned by supporters — 

[Laughter. ] 

CHAIRMAN ROBERTI: — supporters of Dr. Coye. Too 
numerous to document. 

Do I hear a motion? 

SENATOR MELLO: Mr. Chairman. 

CHAIRMAN ROBERTI: Senator Mello. 



101 

SENATOR MELLO: I'd like to have the Committee 
honor — Senator Petris and I both spoke about it. Her due 
date is not until May the 29th, but I don't want to hold her up 
any longer than necessary, because I do plan, as I told her, to 
support her, when I first met her and I saw her excellent 
credentials . 

But I think we have here a very important issue 
that Leg. Counsel would like to analyze the agreement that 
Mr. Gould only sent in yesterday. And the people on the other 
side haven't had a chance to review it, and neither has 
Legislative Counsel. 

So, as soon as they both would indicate to the 
Chairman that they ' re ready to put it back on calendar — 

CHAIRMAN ROBERTI: Do we know when that will be 
ready? 

SENATOR PETRIS: Probably the first two or three 
days of next week. That was immediately FAXed to them so they 
could start on it right away. 

CHAIRMAN ROBERTI: Out of deference to one of the 
Members, which is our custom, we do put the hearing over. 

I will not take any more testimony, absent a 
revolution, which I don't expect happening, there will be no 
more testimony. 

Dr. Coy has sat not only through her hearings, but 
Mr. Gould's hearings as well. It's beyond the call of duty at 
some point. 

So, no more testimony, short of some enormously 



102 

revolutionary document, which I don't anticipate. And we will 
put it over until next week, first item on the agenda, for vote 
only. 

SENATOR PETRIS: There's a problem, Mr. Chairman. 
We may not get the response back since they just got the 
document yesterday. 

CHAIRMAN ROBERTI: Assuming that the response will 
be back, yes. 

SENATOR MELLO: I'll be out of the state next week, 
but it's all right. 

CHAIRMAN ROBERTI: Well, frankly, I think we can 
still take it up. I'll be in communication with you, Senator. 
If you have a problem, we will defer to you, and we'll put it 
over for a week. 

SENATOR MELLO: I will defer to the Chairman and 
Nancy Michel . 

As long as — I think what we all had in mind, 
certainly I did, is that your memorandum of how the 
adjudicatory hearing would proceed with, and then the persons 
who were on the other side, would both set forth their letters 
of understanding, and they would then go into the Journal. So, 
it would not have the force of law, but at least it would 
reflect what the understanding was. 

They just have not had a chance to look at 
Mr. Gould's, and they do find some discrepancies in his 
statement . 

CHAIRMAN ROBERTI: So, one week before we vote, 



103 
I'll call. I will speak to you, Senator -- 

SENATOR MELLO: All right. 

CHAIRMAN ROBERTI: — in case you're not in 
Sacramento at the time . 

If the document is not ready, then I guess it will 
be two weeks, but I'm going to do everything I can to make sure 
that it's ready so we can get the show on the road. 

So with that, Senator Mello moves that the 
confirmation be put over for vote only next Wednesday, assuming 
that the document from Legislative Counsel that was drafted 
during the Gould confirmation, is before us. 

Without objection, such will be the order. 

Thank you, Doctor. 

DR. COYE: Thank you. 

[Thereupon the Rules Committee 
acted upon legislative items on 
the agenda . ] 

CHAIRMAN ROBERTI: We will return to confirmations, 
Richard Andrews, Director of the Office of Emergency Services. 

DR. ANDREWS: Good afternoon, Senator Roberti and 
Members of the Committee. 

I've been in state service for eleven years, having 
joined an earthquake preparedness project in 1981, when I left 
a position as Professor of History at the University of 
Redlands . The goal of this project was to begin earthquake 
preparedness from the ground up, from the neighborhood and 
individual level on up through the state. And part of that 



104 

process, I was involved in neighborhood preparedness, local 
preparedness, business and industry preparedness in Southern 
California. 

In 1982, I was appointed Executive Director of the 
State's Seismic Safety Commission, and served for 
two-and-a-half years during the Coalinga earthquake. At that 
time, I guided the Commission and the Legislature in the 
enactment of legislation following Coalinga that dealt with the 
Central Services ' s buildings, that dealt with school 
preparedness, that dealt with hospital preparedness. 

In 1984, I joined the Office of Emergency Services 
as an Assistant Director. I continued in various capacities in 
Southern California until I was appointed Director in July of 
last year. 

My background leads me in several directions, and I 
think gives me several specific qualifications. First, my 
focus has always been on local governments and local government 
needs. I believe the heart and soul of the Emergency Services 
system in California is at the local level, and I believe that 
the role of the state is to support local governments in these 
activities . 

Because of my background in the earthquake area, 
I'm very interested in multidisciplinary emergencies, that when 
large emergencies happen, we need to be prepared to have law, 
and fire, and police, and emergency medical, and local 
officials involved in the response process. 

In the eight months that I've been Director of the 



105 

Office of Emergency Services, in addition to trying to deal 
with the budget crisis that we all face, we have one of the — 
one of the state agency missions that is subject to very 
unpredictable demand. I began in the middle of a state of 
emergency for the Sierra Madre Earthquake. Two weeks later, we 
had the Cantera spill in Siskiyou and Shasta Counties. Two 
months later, the catastrophic fire storm in the East Bay 
hills, the largest traffic accident in U.S. history, the 
largest sewage spill in U.S. history, and most recently, a 
major flood in Southern California. 

So, I bring to this assignment a broad experience, 
knowledge, and support of local governments, knowledge of the 
state system, and a commitment to making the Office of 
Emergency Services, which is the only state agency that has 
representatives of all the various disciplines that are 
involved in public safety, to make the Office of Emergency 
Services a leader in preserving, developing the systems by 
which the state provides support to local government, as well 
as enhancing our overall ability to prepare for and respond, 
recover from, major catastrophes. 

CHAIRMAN ROBERTI: I guess the major catastrophe 
that comes to everybody's mind, major of majors, would be the 
Big One as far as an earthquake is concerned. 

Do you have ongoing review on what our preparedness 
would be in the event of that kind of a catastrophe? 

DR. ANDREWS: Yes, we do. As a matter of fact, 
tomorrow I'm participating in Southern California with a review 



106 
of all the local officials and federal officials of where we 
are in preparedness. 

I think that we have done an enormous amount here 
in California, and really have a world-class program through 
our public education efforts, through our involvement of 
private industry, through major commitments that have been made 
by local governments across the state. We've developed very 
sophisticated systems . 

But like in many other areas, there are a number of 
critical unmet needs that we have at the state. For example, 
an Emergency Operations Center that dates from the late 1940s. 
So, we have critical needs, and we believe that the strength of 
the system is locally; the strength of the system is the 
people, and we're working as hard as we can with the available 
resources to try to maximize the effectiveness. 

CHAIRMAN ROBERTI: Thank you. 

Are there any other questions of Dr. Andrews? 

Is there anyone in support or opposition in the 
audience? 

SENATOR CRAVEN: Move Dr. Andrews. 

CHAIRMAN ROBERTI : Senator Craven moves 
confirmation be recommended to the Floor. 

Secretary will call the roll. 

SECRETARY WEBB: Senator Beverly. 

SENATOR BEVERLY: Aye. 

SECRETARY WEBB: Beverly Aye. 

Senator Mello. 



107 
SENATOR MELLO: Aye. 
SECRETARY WEBB: Mello Aye. 
Senator Petris . 
SENATOR PETRIS: Who's this? 
CHAIRMAN ROBERTI: Dr. Andrews, Office of Emergency 



Services 



SENATOR PETRIS: I wanted to ask him some 
questions . Sorry about that . 

CHAIRMAN ROBERTI: Well, I think you missed, unless 
you want to re-open it . 

SECRETARY WEBB: Senator Petris. 

SENATOR PETRIS: Can I re-open it for a few 
minutes? 

CHAIRMAN ROBERTI: Why don't we vote, and then 
we'll do something about that. You're abstaining. 

SECRETARY WEBB: Senator Craven. 

SENATOR CRAVEN: Aye. 

SECRETARY WEBB: Craven Aye. 

Senator Roberti. 

CHAIRMAN ROBERTI: Aye. 

SECRETARY WEBB: Roberti Aye. 

CHAIRMAN ROBERTI: The vote is four to zero; 
however, before the vote is announced formally, Senator Petris 
has questions. 

SENATOR PETRIS: Thanks very much. My apologies to 
you, Mr. Chairman, and to the nominee. 

My concerns are raised as a result of the fire in 



108 

Oakland and emergency things. We had a great big meeting, and 
Dr. Andrews made a report and so forth. I wasn't able to stay 
for the whole thing. 

I wanted to get the Director's views on legislation 
I've been working on and see if we're on the right track. I 
don't know to what extent you're informed on it, but I have 
about five bills, but the keys ones have to do with the 
necessity for your Office to develop a plan, a standardization, 
a better command post-type situations. Maybe you're familiar 
with the legislation. 

You can just tell me, do you think we're headed in 
the right direction and you would be supportive? Or do you 
think we need to make changes , and so forth? 

In the latter part of March, some of the people 
I've been meeting with had met with you, and they expressed 
their concerns about proposed changes to the fire service. 
They were very impressed with you overall, I might state that 
up front, but they do have some reservations, and they'd like 
you to spell out your position on this overall new scheme, and 
see how they fit into it, and how they can improve the program 
based on lessons we learned in that particular fire. 

DR. ANDREWS: Let me answer it in a couple ways. 

First, I think that the — the general thrust of 
SB 1841 is one that is entirely in keeping with the direction I 
think we need to go in the state to enhance our preparedness 
for the catastrophic emergencies. 

It's the tradition in California for a great deal 



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of local option in terms of how the emergency systems are 
structured. And that local option works very effectively in 
most emergencies, but in really big emergencies, there is a 
need for a greater standardization. 

In a de facto way, that standardization has 
occurred slowly, mainly through the initial development by the 
fire services of the Incident Command System, and the 
Multi-Agency Coordination System, and then that has slowly 
started to infiltrate other communities and other parts, 
functions, within Emergency Services. 

SENATOR PETRIS: I understand the Incident Command 
System is already being copied around the country. 

DR. ANDREWS: Oh, yes. It's a model that's used on 
a nationwide basis. It's a model that's used by the federal 
government. And it's, again, proved remarkably successful. 

So that the effort that SB 1841 represents, to try 
to achieve a greater degree of standardization so that the 
groups that provide mutual aid and the groups that receive 
mutual aid fit into a common command structure, I think, is 
very appropriate and very timely. 

The interest and the concerns, and I think where we 
need to be attentive, is to make sure that the systems that we 
recommend and develop are equally applicable across a number of 
different functions. That is that not only the fire services, 
but law enforcement, and emergency medical, emergency services 
as such, public works, can all share a common system. And 
again, I think the Incident Command System is the basis for 



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that. 

And secondly, that the system is equally applicable 
in large jurisdictions, like Oakland, and San Francisco, and 
Los Angeles, as well as in the very small and rural 
jurisdictions . 

But the general thrust of 1841, I'm very supportive 
of. Our staff has been working with your staff on that 
measure, as well as I've got our Training Institute assessing 
how much of the training functions that would be — would 
follow from that bill that we might be able to accomplish 
through redirection. 

SENATOR PETRIS: Now on mutual aid, one of the 
concerns expressed was that your office recommends that a 
county fire chief, or whoever is the highest ranking, would 
have to put in a request through OES . But the problem is that 
often the OES structure is staffed by 9-5 people, and there's 
nobody around at a critical time. 

The question is, how do you address that problem? 

DR. ANDREWS: Well first of all, our — in each of 
our state OES regional offices, we do have 24-hour duty 
officers. That is not the case in all the counties, but we 
have never proposed — we have considered a number of potential 
reorganization schemes, but I do not — 

SENATOR PETRIS: They pointed this out in contrast 
to the fire, local fire chief, who has a 24-hour situation. 

DR. ANDREWS: Exactly. 

I do not advocate, and try to make clear to the 



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111 
fire services, would not support without their recommendation 
any fundamental change to the fire mutual aid system that would 
put the area coordinators and the regional coordinators and the 
operational area coordinators of fire under any other function. 
That system works well . There ' s no reason to tamper with that 
system. The challenge is to make that system work in an 
integrated way with the other systems . 

SENATOR PETRIS: Now, the program carried by 
Senator Campbell of FIRESCOPE, is that in place? 

DR. ANDREWS: FIRESCOPE is a number of different 
things, some of it going back to the early 1970s. I was out of 
the initial FIRESCOPE effort that the Incident Command System 
was essentially developed. 

FIRESCOPE is also a specific operation that we have 
in Southern California with the Department of Forestry and fire 
protection with the U.S. Forest Service in managing large 
wildland fires in Southern California. 

It's also a decision process, by which the fire 
service in California makes changes to their own system. 

Senator Campbell's legislation, if we're talking 
about the same bill, was to expand that more widely in the 
state, although it is basically in place on a statewide basis, 
but also, I think, there was a $20 million appropriation as 
part of it. My understanding is that that was the problem. 

SENATOR PETRIS: Yes, they've had cuts. They've 
had budget cuts along with everybody else. One of the 
questions is, are they functioning? Are they able to be 



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112 
functional under the current budget constraints? 

DR. ANDREWS: Well, I've indicated to the Fire 
Advisory Committee that I would work with them in any changes 
that might be needed in the fire services, and that I 
specifically supported the FIRESCOPE concepts, supported the 
systems that came out of it. 

The last two years, through funds that I helped 
secure for an urban search and rescue program, we put money 
into the FIRESCOPE decision making process to develop the 
command structure for urban search and rescue. So, I'm a 
strong supporter of FIRESCOPE and will do everything that I can 
to enhance the program. 

SENATOR PETRIS: Okay, thank you very much. 

Thank you again, Mr. Chairman. 

CHAIRMAN ROBERTI: The role is still open. 
Secretary, call the roll one more time. 

SECRETARY WEBB: Senator Petris . 

SENATOR PETRIS: Aye. 

SECRETARY WEBB: Petris Aye. 

Five to zero. 

CHAIRMAN ROBERTI: The vote is five to zero; 
confirmation is recommended to the Floor. 

Congratulations . 

DR. ANDREWS: Thank you. 

CHAIRMAN ROBERTI: The next appointment is a member 
of the Medical Board of California, Division of Medical 
Quality, Dr. Clarence Avery. 



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113 

Doctor, thank you for waiting. We will ask you 
what we ask the Governor ' s appointees , why you feel you ' re 
qualified to retain this position? 

DR. AVERY: Thank you, Senator Roberti. 

I wish to be a member of the Medical Board of 
California to do what I can to assure that all the people of 
the State of California receive the quality of medical care 
that they deserve. 

And number two, to deal with those members of the 
profession who do not perform up to standards, and who betray 
the public confidence and embarrass the profession. 

I have a long experience in dealing with matters of 
quality assurance and of discipline in the profession at 
local, state and national levels, and I believe that I can 
perform the job satisfactorily. 

CHAIRMAN ROBERTI: Thank you very much, Doctor. 

Are there any questions? 

I think we're going to let you off easy. 

DR. AVERY: Thank you. 

SENATOR PETRIS: May I move it? 

CHAIRMAN ROBERTI : Senator Petris moves 
confirmation be recommended to the Floor. 

Secretary will call the roll. 

SECRETARY WEBB: Senator Beverly. 

SENATOR BEVERLY: Aye. 

SECRETARY WEBB: Beverly Aye. 

Senator Mello. Senator Petris. 



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SENATOR PETRIS: Aye. 

SECRETARY WEBB: Petris Aye. 

Senator Craven. 

SENATOR CRAVEN: Aye. 

SECRETARY WEBB: Craven Aye. 

Senator Roberti. 

CHAIRMAN ROBERTI: Aye. 

SECRETARY WEBB: Roberti Aye. 

CHAIRMAN ROBERTI: The vote is four to zero; 
confirmation is recommended to the Floor. 

Congratulations, Doctor. 

[Thereupon this portion of the 
Senate Rules Committee hearing 
was terminated at approximately 
6:07 P.M. ] 

— ooOoo — 



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115 
CERTIFICATE OF SHORTHAND REPORTER 

I, EVELYN J. MIZAK, a Shorthand Reporter of 
the State of California, do hereby certify: 

That I am a disinterested person herein; 
that the foregoing Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel 
or attorney for any of the parties to said hearing, nor in 
any way interested in the outcome of said hearing. 

IN WITNESS WHEREOF, I have hereunto set my 
hand this r^ r day of April, 1992. 




2VELYN J. tflZAI 
Shorthand Report* 



196-R 

Additional copies of this publication may be purchased for $6.60 per copy plus 
current California sales tax. 

Senate Publications 
1100 J Street, B-15 
Sacramento, CA 95814 

Make checks payable to SENATE RULES COMMITTEE. 

Please include Senate Publication Number 196-R when ordering. 



HEARING 

SENATE RULES COMMITTEE 

STATE OF CALIFORNIA 




DOCUtfgj 

MA 199* 



&PT, 



"*>*Vi 



STATE CAPITOL 

ROOM 113 

SACRAMENTO, CALIFORNIA 

WEDNESDAY, APRIL 29, 1992 
2:10 P.M. 



197-R 



SENATE RULES COMMITTEE 
STATE OF CALIFORNIA 



HEARING 



STATE CAPITOL 
ROOM 113 
SACRAMENTO, CALIFORNIA 



WEDNESDAY, APRIL 29, 1992 
2:10 P.M. 



Reported by: 



Evelyn J. Mizak 
Shorthand Reporter 



11 
APPEARANCES 



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MEMBERS PRESENT 
SENATOR DAVID ROBERTI, Chairman 

5 SENATOR WILLIAM CRAVEN, Vice Chairman 

6 SENATOR ROBERT BEVERLY 

7 SENATOR NICHOLAS PETRIS 

8 MEMBERS ABSENT 

9 SENATOR HENRY MELLO 

STAFF PRESENT 

CLIFF BERG, Executive Officer 
PAT WEBB, Committee Secretary 
RICK ROLLENS, Consultant on Bill Referrals 
NANCY MICHEL, Consultant on Governor's Appointments 

ALSO PRESENT 



WILLIAM E. MAYER, M.D., Director 
Department of Mental Health 

FRED MILKIE, M.D., Member 
Medical Board of Caifornia 
Division of Licensing 

SENATOR WADIE DEDDEH 

ROBERT L. HARVEY, Member 
Unemployment Insurance Appeals Board 

RONALD JOSEPH, Chief Deputy Director 
Department of Health Services 

CARL E. RAUSER, Chief Deputy Director 
Department of Mental Health 



Ill 
INDEX 

Page 
Proceedings 1 

Governor ' s Appointees ; 



WILLIAM E. MAYER, M.D., Director 

Department of Mental Health 1 

Background and Experience 1 

Questions by CHAIRMAN ROBERTI re: 

Legislative Mental Health Advocate 2 

Motion to Confirm 4 

Committee Action 5 

FRED MILKIE, M.D., Member 

Medical Board of California 

Division of Licensing 5 

Introduction by SENATOR WADIE DEDDEH 5 

Background and Experience 6 

Motion to Confirm 7 

Committee Action 7 

ROBERT L. HARVEY, Member 

Unemployment Insurance Appeals Board 8 

Background and Experience 8 

Motion to Confirm 9 

Committee Action 9 

RONALD JOSEPH, Chief Deputy Director 

Department of Health Services 10 

Background and Experience 10 

Question by SENATOR PETRIS re: 

Department's Response to Court Ruling 

on Prop. 99 Transfer of Funds 12 

Motion to Confirm 13 



IV 



Committee Action 13 

CARL E. RAUSER, Chief Deputy Director 

Department of Mental Health 14 

Background and Experience 14 

Motion to Confirm 15 

Committee Action 16 

Termination of Proceedings 16 

Certificate of Reporter 17 



1 

P-R-O-C-E-E-D-I-N-G-S 
— 00O00 — 

CHAIRMAN ROBERTI: We're going to take Governor 
Appointees. We are going to take up Dr. Mayer, then Dr. Milkie, 
and then Senator Marks with two rule waivers . 

Dr. Mayer has sat through innumerable hearings, and 
it's not fair that he shouldn't be taken up first. 

DR. MAYER: Thank you, sir. 

So, Doctor, for Director of Mental Health, and we'll 
ask you what we ask all the Governor's appointees, and that is 
why you feel you're qualified to assume this position. 

DR. MAYER: Thank you, Senator Roberti, Senator 
Beverly, Senator Craven. 

I believe that I'm well qualified for this position 
because I have been a psychiatrist, fully trained, for more than 
forty years . I had the great privilege of serving in this 
office during the Reagan Administration, and in view of the 
complexity of mental health, it's been very useful that I've 
served as Director of Mental Health in four of the counties in 
California, from the second smallest to the second largest, and 
have, in addition, seen thousands of patients, literally. 

So that, with this background, and also having run 
the mental health system for the federal government, it goes to 
get a kind of an overview since we have a close relationship 
with the feds. 

I believe that those things make me qualified. 

CHAIRMAN ROBERTI: Thank you very much, Doctor. 



2 

Is there anyone here in opposition to Dr. Mayer's 
appointment? 

I think what we need is, at the legislative level, is 
a mental health advocacy so that the mental health programs 
dont ' take the brunt of cutbacks . 

DR. MAYER: I agree. 

CHAIRMAN ROBERTI: I guess I'd like your observation 
on that. 

DR. MAYER: Well, you've touched on a very 
significant point, and that is the fact that mental health 
alone, of all the major health activities, has never been 
treated at the federal or state level as any kind of an 
entitlement. 

I'm wary of entitlements, as most people are. But 
the fact is that mental health afflicts — or, mental illness 
afflicts a huge number of people in this country and in 
California. We see in the mental health system in our state 
about 320,000 patients a year as outpatients, and another 10,000 
or more in the state hospitals. 

And the problem with mental health over the years has 
been that the truly seriously mentally ill have received short 
shrift. From the very beginning of the country, it was decided 
that it was a state responsibility to take care of the mentally 
ill. This state started out by locking them up on a prison ship 
in San Francisco Bay almost as one of its first acts. And 
psychiatry, following the advent of Freudian psychoanalytic 
theory, focused very largely on people that are not perceptibly 



3 
disable, and not perceptibly sick. 

So, it wasn't until World War II, actually, that it 
became clear that there is a category of people who are very 
emotionally disturbed but who can be treated very briefly, and 
that there is another category of people so sick that society 
essentially rejects them and relegates to state hospitals. 

In the '50s, when this state passed the Short-Doyle 
Act, and then subsequently the Lanterman-Petris-Short Act, it 
leaped ahead of most of the other states in this country by 
recognizing the fact that the best place to treat people was 
close to their homes and close to their families. And there 
was, for a few years, a great surge of community mental health 
in this state. And as partly as a result of that — and the 
idea of Short-Doyle originally was to take care of seriously 
sick people who were getting out of state hospitals, but what 
happened was that the community mental health clinics in this 
state increasingly were seeing ambulatory patients, didn't need 
hospitalization except perhaps briefly, who sometimes kept 
coming back for therapy week after week, sometimes for years, 
and the public was very confused about whether this was a 
legitimate health enterprise or something that just contributed 
to quality of life, or something nice to have. 

And when the Civil Rights movement, and the Civil 
Liberties movement in this country gained great currency during 
the '60s, we saw an evacuation of patients from the state 
hospitals, not because psychiatrists wanted them to get out of 
the state hospitals or mental healthers, but because it became 



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legally impossible to keep people against their will, and it 
became very difficult to treat patients who, although obviously 
sick, obviously very damaged and confused, unless they met the 
very strict requirements of the law for being so disabled that 
they couldn't provide their food, or clothing, or shelter, or 
were overtly dangerous, no matter how sick they were, you 
couldn't treat them. 

And we face today, in this state and in all states, 
but particularly those with large cities, we face a real problem 
of large numbers of homeless mentally ill people on the streets 
who don't want to be treated, whom we cannot treat against their 
will, and who are truly falling between the cracks. 

So, I think the future of mental health in California 
is going to have to involve some way to extend treatment to 
people who are justifiably fearful of being locked up, who don't 
want to go to the state hospital; who want more to say about 
what's done for them. And yet, who can be managed in a way that 
they can resume some kind of an acceptable role in society, 
which the great majority of mentally ill people can do. 

CHAIRMAN ROBERTI: Thank you, Doctor. 

SENATOR CRAVEN: Move. 

CHAIRMAN ROBERTI: Senator Craven has moved 
confirmation be recommended to the Floor. 

Secretary will call the roll. 

SECRETARY WEBB: Senator Beverly. 

SENATOR BEVERLY: Aye. 

SECRETARY WEBB: Beverly Aye. 



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Senator Mello. Senator Petris . Senator Craven. 

SENATOR CRAVEN: Aye. 

SECRETARY WEBB: Craven Aye. 

Senator Roberti . 

CHAIRMAN ROBERTI: Aye. 

SECRETARY WEBB: Roberti Aye. 

CHAIRMAN ROBERTI: The vote is three to zero; 
confirmation is recommended to the Floor. 

Congratulations, Doctor. 

DR. MAYER: Thank you very much, sir. It's a real 
pleasure. 

CHAIRMAN ROBERTI: The next appointment, because 
Dr. Milkie has to catch a 3:00 o'clock flight, and Senator Wadie 
Deddeh is here to introduce him, is Dr. Fred Milkie, Member of 
the Medical Board of California, Division of Licensing. 

Dr. Milkie, we'll ask you the same question we ask 
all the gubernatorial appointees, and that is why you feel 
you're qualified to assume this position? 

DR. MILKIE: Thank sir. I believe the Senator has a 
few words . 

SENATOR DEDDEH: Mr. Chairman, Members, in my 25 
years in the Legislature, this is the second time I've appeared 
before this body to speak strongly on behalf of a candidate in 
whom I believe so very much. 

Dr. Milkie is a San Diegan by birth. Unfortunately 
we lost him to Los Angeles. He's a noted opthalmologist . He's 
a man with a great integrity, great professionalism, and to his 



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credit, the two Governors have been — appointed him to this 
position, and now he's been re-appointed by Governor Wilson. 

I'm here to extend a helping hand, to say I support 
Dr. Milkie's appointment and confirmation, Mr. Chairman. 

CHAIRMAN ROBERTI: Thank you very much, Senator. 

Dr. Milkie. 

DR. MILKIE: Yes, Senators. 

I was fortunate enough to be appointed by the former 
Governor Deukmejian to the Medical Board, Division of Licensing, 
as you suggested. I had the opportunity of serving as the Vice 
President of the Medical Board, Division of Licensing, and I was 
also President of the Division of Licensing. 

I subsequently became Vice President of the Medical 
Board, and now I am currently serving as President of the 
Medical Board, and I was re-appointed by Governor Wilson. 

I think in the time that I have spent on the Board, 
I've shown certain ability to have some leadership qualities 
that were demonstrated. 

I've had numerous responsibilities on the board, and 
among them are improving the oral examination that ' s given to 
all the candidates that come into the State of California for 
licensure. In addition, I've surveyed many hospitals for a 
post-graduate residency training program, and I've drafted 
regulations to improve the standards of care — not care, 
forgive me — of education that's rendered to these candidates. 
This, of course, is in the interest of public protection and 
assuring that these doctors are well trained. 



7 

And I — my most recent charge was the implementation 
of the regulations for SB 2036 for Senator McCorquodale, and I 
just think that I try and be fair, and honest, and above-board, 
and do the best I can. That's all I have to say. 

CHAIRMAN ROBERTI: That's all any of us can do. 
Thank you, Doctor. 

Is there anyone in opposition? 

Do I hear a motion? 

SENATOR CRAVEN: So move. 

CHAIRMAN ROBERTI: Senator Craven moves Dr. Milkie's 
confirmation be recommended to the Floor. 

Secretary will call the roll. 

SECRETARY WEBB: Senator Beverly. 

SENATOR BEVERLY: Aye. 

SECRETARY WEBB: Beverly Aye. 

Senator Mello. Senator Petris . Senator Craven. 

SENATOR CRAVEN: Aye. 

SECRETARY WEBB: Craven Aye. 

Senator Roberti. 

CHAIRMAN ROBERTI: Aye. 

SECRETARY WEBB: Roberti Aye. 

CHAIRMAN ROBERTI: The vote is three to nothing; 
confirmation's recommended to the Floor. 

Congratulations . 

DR. MILKIE: Than you very much, sir. 
[Thereupon the Rules Committee 
acted upon legislative agenda 



8 
items . ] 

CHAIRMAN ROBERTI: The next appointment is that of 
Mr. Robert L. Harvey, Member of the Unemployment Insurance 
Appeals Board. 

Mr. Harvey has been before us before, so you can tell 
us why you feel you're qualified to retain this position. 

MR. HARVEY: Senator Roberti, Members of the 
Committee, as the Pro Tern pointed out, I've twice been before 
this Committee seeking your endorsement to serve as a Member of 
the Unemployment Insurance Appeals Board. 

I am an attorney. I've practiced law both for legal 
aid societies, for major corporations, and I'm also in private 
practice. I have knowledge of the law, compassion for 
individuals . 

I have not only worked to serve the people of the 
State of California, but I've been involved with national 
activities affecting the national unemployment insurance and 
appeals. I served two years as President of the National 
Association of Unemployment Insurance Appellate Boards; as legal 
aid consultant to the Department of Labor regarding unemployment 
insurance issues, both appeals activities and the basic 
unemployment insurance program. 

At the present time, the U.I. Appeals Board, because 
of the economy, is dealing with a major challenge: trying to 
respond to the needs of the people of this state. All of our 
administrative law judges, our clerks, our secretaries are 
dedicated to this cause. 



9 

I'm asking you to endorse me to continue to provide 
the tools and the resources our staff needs to carry out their 
responsibility to the people of this state. 

CHAIRMAN ROBERTI: Thank you very much, Mr. Harvey. 

Are there any questions? Is there any opposition? 

SENATOR CRAVEN: Move Mr. Harvey. 

CHAIRMAN ROBERTI: Senator Craven moves Mr. Harvey's 
confirmation be recommended to the Floor. 

Our own appointee speaks highly of you. I've 
recommended you to the Governor, so I suspect he would have done 
it anyway, but I was glad to add my word of support. 

Secretary will call the roll. 

SECRETARY WEBB: Senator Beverly. 

SENATOR BEVERLY: Aye. 

SECRETARY WEBB: Beverly Aye. 

Senator Mello. Senator Petris. Senator Craven. 

SENATOR CRAVEN: Aye. 

SECRETARY WEBB: Craven Aye. 

Senator Roberti. 

CHAIRMAN ROBERTI: Aye. 

SECRETARY WEBB: Roberti Aye. 

CHAIRMAN ROBERTI: The vote is three to zero; 
confirmation is recommended to the Floor. 

Congratulations . 

MR. HARVEY: Thank you, Senators. 

CHAIRMAN ROBERTI: You're welcome. 

[Thereupon the Rules Committee 



10 
acted upon legislative items 
on the agenda . ] 

CHAIRMAN ROBERTI : The next Governor ' s appointee is 
Mr. Ronald Joseph, Chief Deputy Director of the Department of 
Health Services . 

We'll ask you that same question we ask all the 
Governor's appointees: why you feel you're qualified to assume 
this position? 

MR. JOSEPH: Senator Roberti, Members of the 
Committee, my name is Ron Joseph, and I want to thank you for 
the opportunity to come here today to present my qualifications 
as Chief Deputy Director of Operations for the Department of 
Health Services . 

I'm a native Californian, having been raised in the 
state, and attended the California State Universities. I'm also 
a career civil servant, having served for 18 years in California 
state service, beginning in 197 3, as a Budget Analyst at the 
Department of General Services, and rising through a series of 
staff supervisory and managerial positions, serving as 
Administration Deputy at the Contractors ' State License Board at 
the Department of Consumer Affairs during a time of particular 
challenge that comes with growth and modernization. 

Following that period, I moved to the Department of 
Economic Opportunity, first as the Deputy Director for Low 
Income Energy Assistance Programs, and then as Chief Deputy 
Director of the Department. This experience gave me a keen 
understanding of the importance of working openly and 



11 

cooperatively with a broad range of community-based interests in 
pursuit of the public policy goals, which are aimed at 
benefiting all the members of our diverse society. 

I feel that the results of those endeavors was the 
development of many local service programs which continue to 
this day to provide structures of opportunity for those in need. 

More recently, I served as the Assistant Chief 
Executive Officer for the State Teachers' Retirement System, 
providing administrative direction for the system, as well as 
guiding the design, review, and funding of pension programs. 
This included programs around the design of health insurance 
models for retired teachers, where I learned first-hand of the 
impacts on populations which do not have adequate access to 
affordable health care. 

This is a brief summary of my professional 
development in state service before coming to the Department of 
Health Services. But briefly and more importantly, I would like 
to share with you my goals at the Department of Health Services. 

There is no question that the fiscal conditions which 
we face make this a difficult time in the history of public 
policy and program delivery. Dr. Coye has nevertheless come to 
the Department with the progressive vision to moving — to move 
the public health agenda in these times. Working closely with 
Dr. Coye, it is my intention to assist her in implementing this 
vision within the Department and within the communities that we 
serve. 

I believe that this will best be accomplished by 



12 

working to open the Department of Health Services and make it 
accessible to those communities with which we share common goals 
of improving public health. To that end, we're striving to 
enhance our cooperative technical assistance efforts so that the 
Department serves as a partner with the community of service 
providers . 

It is also my commitment to strive for consistency in 
the Department's response to important public health issues, and 
openness in dealing with individuals and groups with which we 
have a shared interest. 

I am also available to answer any questions which you 
may have . 

Thank you . 

CHAIRMAN ROBERTI: Is there anyone here in 
opposition? Are there any questions of Mr. Joseph? Senator 
Petris . 

SENATOR PETRIS: I'm interested in Prop. 99 and the 
dispute over the transfer of funds. Since the Court ruled that 
that can't be done, what disposition is the Department making? 

MR. JOSEPH: Yes, sir. 

As, Senators, as you're well aware, we received the 
Court ruling. The Court ruling was made on Friday. We are 
still awaiting the final statement from the Court. We have not 
seen the Court's final ruling as yet. 

However, our reaction to it is the reaction of any 
state department in the face of a Superior Court ruling. We 
need to sit down, look at what the Court has ordered us to do; 



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determine how we achieve the desires of the Court, and the 
resulting impacts, both positive and negative, on programs and 
other programs, in this case, that would have been funded. 

From that, we are going to have the responsibility to 
come forward and put before you a recommendation. 

CHAIRMAN ROBERTI: Senator Craven. 

SENATOR CRAVEN: I was going to make a motion to 
recommend confirmation. 

CHAIRMAN ROBERTI: Senator Craven makes the motion 
that the appointment be recommended to the Floor, of Chief 
Deputy Director Ronald Joseph. 

We asked for opposition; Secretary will call the 
roll. 

SECRETARY WEBB: Senator Beverly. 

SENATOR BEVERLY: Aye. 

SECRETARY WEBB: Beverly Aye. 

Senator Mello. Senator Petris . 

SENATOR PETRIS: Aye. 

SECRETARY WEBB: Petris Aye. 

Senator Craven. 

SENATOR CRAVEN: Aye. 

SECRETARY WEBB: Craven Aye. 

Senator Roberti. 

CHAIRMAN ROBERTI: Aye. 

SECRETARY WEBB: Roberti Aye. 

CHAIRMAN ROBERTI: The vote is four to zero; 
confirmation's recommended to the Floor. 



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Congratulations . 

MR. JOSEPH: Thank you very much. 

CHAIRMAN ROBERTI: The next appointment is Carl E. 
Rauser, Chief Deputy Director, Department of Mental Health. 

MR. RAUSER: Thank you, Mr. Chairman and Members. 

CHAIRMAN ROBERTI: Mr. Rauser, we'll ask you what we 
ask all the Governor's appointees, and that is why you feel 
you're qualified to assume this position? 

MR. RAUSER: Shortly after graduating from college, I 
went to work for the old State Department of Mental Hygiene. 
And shortly thereafter, I became the Chief of Budgets, and the 
Chief of the Local Mental Health Program Section, during the 
period of time when we were installing the systems that were 
necessary for the implementation of the Lanterman-Petris-Short 
Act. Many of those systems that were installed and developed in 
that time are still in place and working for the system today. 

During the development of the State Department of 
Health, the Department of Mental Hygiene was incorporated into 
the State Department of Health. I worked for a period of time 
in the Director's Office, coordinating the consolidation of that 
department . 

I subsequently went to Chief of the Financial 
Management Branch, and then the Chief of the Mental Health 
Program. The Mental Health Program became — subsequently 
became the State Department of Mental Health when the State 
Department of Health was broken up into various departments. 

In the late '70s, I left state service and went to 



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work in private enterprise. I had various contracts with 
counties and with private corporations for program development 
and for program efficiencies. I worked with Senator Maddy on 
the passage of SB 900 that subsequently has led to and was the 
framework for realignment legislation. 

During last spring, I worked with Senator 
McCorquodale and Mr. Bronzan on the realignment subcommittee, on 
the realignment work group. And then last summer, when 
Dr. Mayer was appointed Director, he asked me to come back to 
work for the state, and I subsequently did. 

CHAIRMAN ROBERTI: Thank you, Mr. Rauser. 

Are there any questions? Is there any opposition in 
the audience? 

SENATOR CRAVEN: Move Mr. Rauser. 

CHAIRMAN ROBERTI: Senator Craven moves Mr. Rauser' s 
confirmation be recommended to the Floor. 

Secretary will call the roll. 

SECRETARY WEBB: Senator Beverly. 

SENATOR BEVERLY: Aye. 

SECRETARY WEBB: Beverly Aye. 

Senator Mello. Senator Petris . 

SENATOR PETRIS: Aye. 

SECRETARY WEBB: Petris Aye. 

Senator Craven. 

SENATOR CRAVEN: Aye. 

SECRETARY WEBB: Craven Aye. 

Senator Roberti. 



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CHAIRMAN ROBERTI: Aye. 
SECRETARY WEBB: Roberti Aye. 

CHAIRMAN ROBERTI: The vote is four to zero; 
confirmation is recommended to the Floor. 
Congratulations . 
MR. RAUSER: Thank you. 

[Thereupon this portion of the 
Senate Rules Committee hearing 
was terminated at approximately 
3:00 P.M. ] 

— ooOoo — 



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CERTIFICATE OF SHORTHAND REPORTER 

I, EVELYN J. MIZAK, a Shorthand Reporter of 
the State of California, do hereby certify: 

That I am a disinterested person herein; 
that the foregoing Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel 
or attorney for any of the parties to said hearing, nor in 
any way interested in the outcome of said hearing. 

IN WITNESS WHEREOF, I have hereunto set my 
hand this <^J- / "" day of April, 1992. 




1AK vj 



EVELYN J.^MIZAK 
Shorthand Reporter 



197-R 

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